PLANNING AND ENVIRONMENT
Category A Housing Development at Bel Royal, St. Lawrence –
Poplar Trees
Purpose of the Report
To consider a request from the applicant for reconsideration of the Minister’s previous decision regarding the mature row of Lombardy Poplar trees in the north-western corner of the site, on the basis of an updated assessment of their condition. The applicant is asking that Minister allows:
- the removal of the two southern-most trees (Nos 1 and 2); and
- extensive pollarding of the remaining trees (Nos 3 to 8).
Background
- 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 decisions were informed by a ‘Tree Survey’ prepared and submitted as part of the planning application.
3. The poplar trees in question were identified for retention on the approved plans (see plans and photograph in Appendices 1, 2 and 3). At the time they were underplanted with leylandii trees, which were approved for removal.
4. On 29th June 2007, I attended a meeting with representatives of Dandara, Axis Mason and the States Arboriculturalist, where the developers raised a number of issues regarding trees approved for retention. At that meeting, the future of the poplars was discussed. The States Arboriculturalist expressed concerns that the removal of the leylandii from around the poplars could cause difficulties in weakening and exposing them. From a cursory inspection he also found evidence of ‘Honey Fungus’ in two of the poplars. In the circumstances, it was agreed that the States Arboriculturalist should re-assess the poplars when the leylandii had been removed and provide an updated report on the status of the trees (as reported previously to the Minister).
5. At the end of the bird nesting season the leylandii trees were carefully removed. In doing so, the bulk of their root system was retained to support the poplars.
6. The States Arboriculturalist’s updated report was received on 16th August 2007 (see Appendix 4). On the basis of his findings, he recommends the felling of tree nos. 1 and 2 and crown reduction of the remaining trees.
7. In an e-mail on the same day, the Minister made it clear he would not sanction the removal of any trees.
8. On the 20th August 2007, the applicant and local politicians were advised that the Minister had decided not to sanction any works to the trees. This has prompted the current request for reconsideration (see Appendix 5).
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 trees in question are identified as Group 1 in the ‘Tree Survey Report’, which describes them as follows:
Tree No. G1 Species: Populus nigra ‘Italica’ Age: Mature (i.e. over * life expectancy) Girth: 225cm (average) Height: 21 - 25m Observations: Line of very tall trees located on the boundary of the site. Each tree has been planted between 2No. Cupressocyparis leylandii. The trees are visible above the Cupressocyparis leylandii. Retention Value: B |
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 retention of the trees in question is recognised as desirable and this is reflected by the approved plans.
Updated assessment of trees
The recent and more detailed reassessment of the trees by the States Arboriculturalist (made possible by the removal of the leylandii trees) paints a different picture.
He describes tree nos. 1 and 2 as diseased and dying and recommends that they “must be felled now as they are a danger to the site”. He states that the trees have ‘Honey Fungus’, which he describes as “a severe root and butt decay” that damages the root system before working its way up the trunk of the trees, reducing affected areas to a pulp type texture. It cannot be treated and will eventually cause the tree to fall.
He also singles out tree no. 4 as particularly dangerous because branches have grown out from a decaying wound, which was created when the leader snapped in a storm several years ago. He says the new growth is at risk of snapping out in high winds and recommends that the tree is crown reduced to the point of the original snap out. Although this will leave the tree with nearly no branches, he says it will recover with time and regular crown reductions.
With regard to the remaining 5 poplars, he points out that they have been weakened by the suppression of the leylandii and recommends that they be crown reduced to an agreed height of 2 feet above the remaining leylandii in the northern corner.
Finally, he points out that all the poplars are at risk of being affected with ‘Honey Fungus’ and recommends that they are annually checked by a qualified arboriculturalist.
Developer’s request for reconsideration
In response to the Minister’s earlier decision not to sanction any work to the trees, the developers have written seeking reconsideration of the decision.
In doing so, they highlight the views expressed by the States Arboriculturalist in relation to the condition of and dangers presented by tree nos. 1 and 2 and his recommendations that they be felled and they raise concerns about the safety implications if these trees are retained. They also suggest that the removal of these trees would reduce the likelihood of the remaining trees contracting ‘Honey Fungus’.
With regard to tree nos. 3 to 8, they point out that these form part of the rear gardens of several of the approved properties (see Appendix 2) and raise concerns about the long term safety of future residents if the trees are retained in their current state. They argue that “due to the South Westerly prevailing wind and the size of the trees, should they collapse, they could potentially fall directly onto our purchaser’s property”. In view of their concerns, they recommend that pollarding be carried out to a manageable height, which would not endanger the property or the purchaser and make it easier to carry out further maintenance. They suggest this would make future requests from purchasers for the removal of the trees less likely.
Conclusions
This row of very tall poplar trees is an important landscape feature which is approved for retention as part of the current planning permission. However, the aesthetic and amenity value of the trees have been impaired by the removal of the leylandii trees, which have left the lowest parts of the trunks denuded of branches. For this reason and in order to ensure a positive contribution to the character of the area in years to come, every effort should be made to retain and enhance this feature, as far as is practically possible and appropriate.
Notwithstanding the above and the fact that the future of the trees on this site is an extremely sensitive political issue, there is strong evidence, based on expert opinion, which points to the need to remove two of the trees and crown reduce the remainder. The States Arboriculturalist makes it clear that tree nos. 1 and 2 are diseased and dangerous and recommends that they be felled now. He also makes a strong case (reinforced by the developer’s views) why the remaining weakened poplars should be crown reduced to reduce the dangers posed by the trees when exposed to high winds and to aid their future stabilisation and growth.
In the face of such evidence, it is difficult to justify continuing a stance which refuses to sanction the recommended works to the trees, particularly given the future risks posed to life and property.
Yes, the felling and pollarding of the trees will detract from the appearance and amenity value of this landscape feature in the short term, but the States Arboricuturalist has previously indicated that similar pollarding has been done successfully elsewhere in the Island and the trees will recover given time. Furthermore, the feature can be strengthened / reinforced in future by requiring new planting of Lombady Poplars along the boundary.
Legal implications
Point 1
The felling of trees is not development within the meaning of the Planning and Building (Jersey) Law 2002 and, therefore, no permission is required under the Law to fell a tree. Under normal circumstances, therefore, the trees on site could be felled at any time without the need for permission.
However, under planning condition no.20 ‘Tree Protection during Site Works’, the prior written consent of the Minister is required for the felling, lopping, topping, destruction or removal of any tree on the site approved for retention (including the poplar trees in question). To do so without the consent of the Minister would be an offence under Article 61 of the Planning and Building Law.
That said, it is a defence in Law (under the same article), where a tree is removed in such circumstances, 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 nos. 1 and 2 and the crown reduction of the remaining poplars in the line because they are dying or dangerous, should the developer or future residents decide to carry out such work without consent.
Point 2
Should the Minister maintain his stance not to allow works to the trees, it would be difficult to argue at appeal that the decision was reasonable and fair, having regard to all the material considerations.
Point 3
There is an issue here about potential liability should the poplar trees or branches of those trees fall onto residential properties in future 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 of the States Arboriculturalist, but it seems to me that if he maintains his current stance and refuses to allow the work recommended by the States Arboriculturalist to be undertaken, he would be doing so in the knowledge that their would be a potential risk of injury and damage to the approved adjacent properties and their occupants. As such, if a tree or branches were to fall onto properties as described above causing injury or damage, it is likely to 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. Furthermore, in the light of the evidence and the nature and impact of the recommended works, there do not appear to be any reasonable grounds for refusing the recommended works, which would outweigh the need to reduce the potential risk posed to future residents. However, if the Minister does wish to maintain his current stance, having taken all factors into account, he will have to satisfy himself that the risk to future residents is not sufficient to make the retention of the poplar trees in their present form unreasonable.
Consultation
The proposal has been the subject of consultation with the States Arboriculturalist, as described.
Recommendation
That the Minister for Planning and Environment decides to:
- Approve the felling of tree nos.1 and 2, provided they are replaced by 2 new heavy standard trees of the same species;
- Approve the crown reduction of tree no.4 to the point of the original snap out;
- Approve the crown reduction of the remaining poplar tees in the line (nos. 3, 5, 6, 7 and 8) to a height of 2 feet above the adjacent leylandii tree in the northern corner of the site.
All on condition that reinforcement planting of Lombardy Poplars is undertaken along the site boundary in question, together with suitable fencing, to the satisfaction of the Minister, in the first planting season following the felling of the trees.
Reason(s) for Decision
- To enable the removal of diseased and dying trees;
- To reduce the risk of disease to the remaining poplar trees;
- To allow the remaining poplar trees to grow and stabilise;
- To reduce the risk of damage and injury to approved properties and future residents from falling trees and branches;
- To reinforce the existing line of trees feature in the future through new planting and appropriate surgery.
Action Required
- inform the land owner and local political representatives of the Ministers decision;
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: Drawing identifying Poplar Trees.
- Appendix 2: Extract from Approved Development Plan.
- Appendix 3: Photograph of trees.
- Appendix 4: Report of Nick Armstrong, States Arboriculturalist on status of trees (e-mail dated 16th August 2007).
- Appendix 5: Request for Reconsideration from Dandara (letter dated 20th August 2007).
File ref: P/2006/2489
gov.je