PLANNING AND ENVIRONMENT
Category A Housing Development at Bel Royal, St. Lawrence –
Survey of Nesting Birds
Purpose of the Report
To advise the Minister for Planning and Environment of the findings of a survey into breeding birds at the site and other associated information requested by the Minister.
Background
1. On 21st March 2007, the Minister for Planning and Environment 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 landscaping proposals were informed by a ‘Landscape / Ecological Review’ and a ‘Tree Survey’ submitted as part of the application. Both studies were prepared by Michael Felton Ltd (landscape architects). The first was prepared in consultation with a local ornithologist and the States Ecologist and the second was in consultation with the States Arboriculturalist.
3. Included among the trees which were approved for felling was a line of 12 mature oak trees planted on a bank along the northern roadside boundary of Field 851 (N.B. these are the subject of a separate report to the Minister).
4. The planning permission allows for certain works to be carried out in advance of a planning obligation agreement being reached, including site preparation work, which was construed to include tree protection and tree removal.
5. 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 was greeted with public concern, fuelled not only by the loss of the trees, but also because it took place at a time of year when birds were nesting.
6. A planning officer visited the site on 14th May 2007 and confirmed that the tree felling was in compliance with the approved plans. The officer was advised by the tree surgeon (J Le Maistre) that neither he nor his workers had seen any evidence of this year’s bird nests in the trees that had been felled. Later that day, the States’ Ecologist visited the site and could find no evidence of the destruction of any nests. However, in relation to the oaks that were felled, local ornithologist Mike Stentiford has said “in oaks such as these, any nest would have been contained within the trunks (hole nesters such as great or blue tits) so would not become immediately obvious”.
7. As a consequence of the public concern and in view of its obligations under the Conservation of Wildlife (Jersey) Law 2000 to ensure nesting birds are protected, the developer agreed (14th May 2007) 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 in the trees yet to be felled;
· the end of July (a time suggested by both local ornithologist Mike Stentiford and the States’ Ecologist), when the main nesting season is over (N.B. Birds can nest later than the end of July and this does not mean, therefore, that trees can be felled after that date where it would destroy protected nests which are in use or being built).
8. That evening, a letter was sent to States’ Members advising them of the position and the Minister answered questions in the House the following day. In addition to advising on the cessation of tree felling, the Minister told States Members that he will be insisting on an independent verification, for any further trees that are removed, that nests have not been destroyed.
9. Following the questions in the House on 15th May 2007, the Minister called inter alia for:
· an immediate survey of the complete site to identify protected nests;
· a survey of other related tree habitat issues on the site;
· a new standard condition on tree felling which precludes this taking place in the nesting season;
· a review of the planning application processes and the involvement of the Environment Department in relation to tree protection.
10. Dr. H. Glyn Young of the Durrell Wildlife Conservation Trust for Environment Division (who also majors in the Société Jersiaise) was subsequently commissioned to carry out the independent survey to establish the situation regarding nesting birds.
11. In addition, at the request of the Minister, the States Ecologist was asked to:
· conduct a wider ecological review in relation to the tree habitats and provide a suitable commentary on this and how anything significant might best be protected;
· assess how many of the 50 endangered species on the Biodiversity List may be resident in the wetland area to the south of the site.
Discussion
Nesting Survey
The survey of the territories of nesting birds was conducted by Durrell over a three day period commencing on 24th April 2007 and the final version of the report entitled ‘Rapid Assessment of Breeding Birds at Bel Royal Development Site, La Vallée de St. Pierre, Jersey’ was received on 21st June 2007 (see Appendix 1).The survey provides a better understanding of bird life, and in particular, breeding birds in the area.
Due to time constraints, the survey uses a simplified methodology to determine the presence, number and sites of breeding birds. This is based on locating and mapping singing male birds, as these were considered as confirmation of the location of probable breeding territories.
Fourteen species of birds were found to be singing at the site, of which eleven were considered to be within breeding territories. Eleven other species were also found to be using the site, or foraging directly above it (including the locally scarce White Wagtail). Three of the protected species considered to be nesting at the site have a UK and Channel Islands conservation concern listing (i.e. Song Thrush, Dunnock and Goldcrest).
The report concludes that there are a large number of birds breeding at the site and “it is also probable that many of the birds will be lost from the site in future, either from loss of habitat, or from disturbance from housing and the increased pressure from alien predators”.
The report recommends inter alia that:
as much of the land area holding breeding birds is left intact and that buffering to safeguard this is developed;
the wet fields to the south (861, 862, 862A and 863A) are left unimproved, unless this is acknowledged to be in the best interests of wildlife; and
fencing be erected along the southern boundary of the housing site (fields 853 and 854) to prevent incursions from cats.
Clearly, the development of housing on any green fields will inevitably have an impact on the character and wildlife value of that area and this is one of the factors weighed in the balance at the site selection stage. It is also one of the reasons why there was a requirement that the application be supported by a landscape/ecological study and a tree survey. Clearly, it would be difficult at this late stage to reasonably make any significant changes to the approved plans for the housing area. However, it is worth noting that the approved scheme aims to conserve and enhance the biological diversity in the area and incorporates a landscape framework which provides the basis for an imaginative and comprehensive approach to landscaping. The scheme provides for:
a large proportion of the site area to remain undeveloped;
a large buffer strip along Le Perquage (i.e. a heavily planted bund in Field 853) and a large amenity wetland area to the south of the housing site;
the retention and good quality trees where practicable and new tree and shrub planting within the housing area, where all houses will have gardens, so providing ‘borrowed’ landscape extensions;
the replacement of lost trees on at least a 2.5 to 1 basis;
the maintenance and enhancement of the special existing characteristics of the wetland area to the south with minimised disturbance. Planting will be minimal, with native trees, shrubs and ground flora suitable for wetter locations (where possible using cuttings taken in situ on site). Footpaths are kept to a minimum to prevent unnecessary disturbance. The only other significant work proposed is the widening of some existing drainage ditches where water naturally collects;
the enhancement /enlargement of the existing willow car (which has a high capacity to support wildlife) to provide enhanced wildlife corridors. It is intended that this be managed through coppicing on a rotational cycle.
The planning permission carries a condition requiring the submission of a detailed landscaping scheme for the Minister’s approval and the future management of the landscaped areas is one of the matters that is to be addressed by the Planning Obligation Agreement.
In addition to aesthetic and accessibility considerations, there are obvious practical difficulties in pursuing the idea of a fence for the purpose of keeping out cats.
However, in any event, it is clear that the results of the survey show that no more clearance work should be carried out anywhere on the site until the end of July.
Habitat Review
The States ecologist has also provided additional commentary on the habitat provided by trees on the site, as an addendum to the original ‘Landscape / Ecological Review’ (see Appendix 2).
His comments highlight the wildlife value of mature oak trees and trees in general. However, he goes on to make various observations related to the tree felling in St. Peter’s Valley. These warrant a brief response, which is included in the brackets, as follows:
He suggests that if there had been an EIA the value of the trees would have been noted and implies that other arrangements could have been made so that fewer trees needed to be felled. (None of the sites zoned in the Island Plan were subject to an EIA and it was not a requirement of the development briefs. However, EIAs are more likely to be required for future zonings. The Minister, in his published report on the previous application (August 2006), has already ruled that an EIA was not required in this instance because of the wide range of supplementary environmental information provided by the applicant and brought together in an Environmental Statement. The value of the trees was highlighted as an issue at the outset of the planning process and should have been apparent from the ‘Tree Survey’ conducted in consultation with the States Arboriculturalist. Consideration has also been given to how they might be saved from the outset and at various points throughout the planning process. Planning is not a single issue activity, however, and requires holistic thinking and carefully weighed and balanced decision making, having regard to all the material issues arising. For the vast majority of the protracted planning and application process, the planning authority has taken the view that road safety issues for pedestrians and other road users take precedent over the retention of the roadside oak trees).
He suggests it must become standard practice to recognise that mature trees have infinitely greater value than ones which have recently been planted (i.e. as part of replacement planting).
He says it will be useful to review current practices when determining such applications in future and emphasises the need to consider all options before deciding to remove trees.
At the end of his report, the States Ecologist makes the following recommendations:
The Minister’s action in bringing in planning controls is admirable and will help to emphasise that it is the responsibility of all involved to consider the importance of trees. (More a statement than a recommendation).
A review of existing commitments towards a “whole government approach” should be carried out.
A more robust and integrated cross-departmental system of appraisal of trees on development sites must be adopted to prevent this happening again. For example, the UK British Standard 5837 ‘Trees in Relation to Construction – Recommendations 2005’ could be adopted by the Planning Department.
(It should be recognised that:
- the Environment Department and other formal consultees have been consulted throughout the protracted planning process;
- the ‘Tree Survey’ submitted with the application was completed in consultation with the States Arboriculturalist and based on BS5837;
- the merits or otherwise of wholesale adoption of BS5837 by the Planning Department could be reviewed;
- the decision to allow removal of the trees was based on weighing all the factors involved and not just the value of the trees).
If it is determined that trees are to be lost, neighbours should be notified well in advance that the trees are to be felled so that any suspicion that the work is being rushed through is avoided;
(This is good practice which developers and tree owners would do well to heed. The planning system looks to protect trees through planning conditions and listing for amenity reasons and this does not extend to advising neighbours exactly when trees, the subject of an application, are to be felled. It should also be borne in mind that the vast majority of trees in the Island are not protected and consent under the planning law is not required for felling them).
The experience of commercial tree surgeons and arboriculturalists should be drawn on and their advice on timing and advisability of tree felling should be followed.
(The advice of the States Arboriculturalist has been taken into account regarding the advisability of tree felling on the site in question and the trees were felled by an experienced tree surgeon. The Minister has already decided on the timing issue, requiring no tree felling during the nesting season, and insisting on a new standard condition to this end).
Endangered Species
The States Ecologist has also confirmed that:
“none of the species listed in the Biodiversity Action Plans are, as far as we know, found in the area south of the development, although we are proposing to prepare an action plan for Brent Geese this year; Brents use the area a lot. Nor are any of the plants proposed for the schedule of protected plants in the ‘Conservation of Wildlife ( Jersey ) Law 2000 (as amended)”.
Legal implications
The felling of trees is not development within the meaning of the Planning and Building Law and, therefore, no permission is required under the Law to fell a tree. It is also not prohibited by any other statute, so, under normal circumstances, the trees on the site could have been felled at any time without the need for permission from anyone.
However, attached to the permission is condition no.20 which is primarily intended to deal with tree protection during site works. Despite its intention, it could be argued that sub-para (v) of the condition requires the consent of the Minister for the felling of any tree on the site. Sub-para (v) reads “No tree shall be felled, lopped, topped, or in any way destroyed or removed, unless the prior written consent of the Minister for Planning and Environment is received”. Clearly, this interpretation could be open to question.
It could also be argued that, in any event, the interpretation of preliminary sites preparation works permitted under planning condition no. 3, to include approved tree removal, which was conveyed to the applicant, effectively overcomes any restriction that may or may not arise from condition 20(v).
In any event:
Any trees included on the List of Protected Trees under Article 58 of the Law are protected from felling etc. without the Minister’s permission;
Any trees indicated on the approved plans for retention are protected from felling etc. unless approved by or on behalf of the Minister;
It is an offence under the ‘Conservation of Wildlife (Jersey) Law 2000’ for any person knowingly to “take, damage or destroy the nest of any protected wild bird while that nest is in use or being built”. This applies to all birds except carrion crow, magpie, feral pigeon and starling.
Consultation
Recommendation
That the Minister for Planning and Environment decides / confirms that:
(i) no tree felling shall be carried out anywhere on the site until the end of July;
(ii) no trees are felled which contain protected nests which are in use or being built;
(iii) there is independent verification that any trees that are felled after July in accordance with the permit or any subsequent modifications agreed by or on behalf of the Minister, do not contain any protected nests;
(iv) the Planning Department reviews the potential adoption of BS5837 ‘Trees in Relation to Construction’- Recommendations 2005’;
(v) the Planning Department enters into discussions with the Environment Department about “the whole government approach” and a better integrated cross-departmental system of appraising trees on development sites.
Reason(s) for Decision
To reduce the detrimental impact on the birdlife and ecology of the area and the Island associated with the felling of trees, both now and in the future.
Action Required
inform the land owner and local political representatives of the Ministers decision;
formally thank Dr. H. Glyn Young for his report.
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: Dr. H. GLYN YOUNG: ‘Rapid Assessment of Breeding Birds at Bel Royal Development Site, La Vallée de St. Pierre, Jersey’, 24th – 26th May 2007.
Appendix 2: M. FREEMAN, Principal Ecologist: ‘Additional commentary relating to the habitat provided by the trees approved for removal at the Bel Royal Cat A housing development’.
File ref: P/2006/2489
gov.je