Report on an Investigation into Complaint No
03/C/09398
against Vale Royal Borough Council 25 August
2004
[Thanks go to Edmund
Hopkins for supplying this report]
Key to names used
Mrs Clerk
The complainant
Mr Clerk
The complainant's husband
Officer A
An arboricultural officer with the Council
Officer B
A senior planning officer with the Council
Officer C
A Director with the Council
Mr Grant
A neighbour of the complainant
Councillor S
A former Member of the Council
Councillor T
A former Member of the Council
Councillor U
A former Member of the Council
Councillor V
A Member of the Council
Councillor W
A Member of the Council
Councillor X
A Member of the Council
Councillor Y
A Member of the Council
Councillor Z
A Member of the Council
Report Summary
Mrs Clerk [that is not her real name for legal reasons] complained to the Ombudsman that
the Council acted unreasonably when it imposed a Tree Preservation Order on all the trees
in her garden and failed to give proper consideration to her objections before confirming
the Order. As a result of this Mrs Clerk must now apply to the Council each and every time
she wishes to undertake even minor work on any of her trees.
Finding
The Ombudsman found the Council to have been unduly influenced by representations made to
it by a neighbour of Mrs Clerk. These representations carried allegations that the trees
were at risk when in fact there was no evidence at all to support this. The Council failed
properly to evaluate the risk before confirming the Order. The Ombudsman found that the
Council had in place no policy for identifying appropriate trees or woodland for
protection in its area and no criteria against which to evaluate risk. The Ombudsman
believes that the Council failed to act even-handedly here apparently attaching weight to
unsubstantiated allegations made by a neighbour and giving no weight to evidence provided
by Mrs Clerk which, on the face of it, demonstrated that the trees were at no risk.
The Ombudsman found that the Council failed properly to review the Tree Preservation Order
and that a report in fact misled members at committee who were not advised of the concerns
of those members who had visited the site. As a consequence of this members discussed the
general amenity of trees in the area and failed to review the Tree Preservation Order on
the agenda.
The Ombudsman found there to have been maladministration by the Council causing injustice
to Mrs Clerk. The Council has agreed to the Ombudsman's recommended remedy.
Recommended Remedy
The Council should revoke the Tree Preservation Order.
The Council should introduce procedures to identify trees and woodland
suitable for protection.
The Council should consider introducing a system for evaluating when a
tree might be at risk.
The Council should review the routine practice of entering private
property for the purpose of evaluating trees and woodland for Tree Preservation Orders.
The Council should pay Mrs Clerk £500 for the time and trouble she was
put to in pursuing her complaint to the Ombudsman and for the frustration she suffered as
a result of its actions.
Introduction
1. Mrs Clerk complains that the Council acted unreasonably when it
imposed a Tree Preservation Order (TPO) on all the trees in her garden and that it failed
to consider her objections properly before confirming the Order. As a result she must now
apply for the Council's consent before she can undertake even minor work on any of the
trees in her garden. She also considers it unfair that none of her neighbours has been
similarly restricted though her trees are no more splendid than theirs nor any more at
risk.
2. For legal reasons, the names used in this report are
not the real names of the people and places concerned.
3. Two of the Commission's officers have visited the
site, one has interviewed the complainant, Members, former Members and officers of the
Vale Royal Borough Council and examined such of the Council's files as are available.
Despite a thorough search, the Council has been unable to locate its principal file which
it suspects may have been removed from its offices without authority.
4. An opportunity has been given for the complainant,
Members, former Members and the Council to comment on the draft key facts of this report
prior to the addition of the conclusion.
Legal and Administrative Background.
5. Councils may make TPOs if it appears to them
expedient in the interests of amenity to make provision for the preservation of trees or
woodland in their area . The law does not define circumstances which might make an order
'expedient' nor does it define 'amenity.'
6. The Government has, however, issued guidance
"Tree Preservation Orders: A Guide to the Law and Good Practice" (April 2000)
for the assistance of councils. The preamble to the Guide says that its status is that of
a Government Circular, and it should carry that weight. What follows, unless otherwise
indicated, is a summary of the principal points of that Guide so far as they are relevant
to this report.
7. TPOs should be used to protect selected trees and
woodlands if their removal would have a significant impact on the local environment and
its enjoyment by the public. Councils should be able to show that a reasonable degree of
public benefit would accrue before TPOs are made or confirmed. Trees, or at least part of
them, should therefore normally be visible from a public place, such as a road or
footpath, although exceptionally the inclusion of other trees may be justified. It would
be inappropriate to protect a tree which is dead, dying or dangerous.
8. Councils should be able to explain to landowners why
their trees or woodlands have been protected by a TPO. They are advised to develop ways of
assessing the amenity value of trees in a structured and consistent way, taking into
account the following key criteria:
- Visibility: the extent to which the trees or woodland can be seen by
the general public. If they are just barely visible from a public place, a TPO might only
be justified in exceptional circumstances.
- Individual impact: the mere fact that a tree is
publicly visible will not be sufficient to warrant a TPO. The Council should assess the
tree's importance by reference to its size and form, its future potential as an amenity,
taking into account any special factors such as its rarity, value as a screen or
contribution to the character or appearance of a conservation area.
- Wider impact: the significance of the trees in their local surrounding
should be assessed.
9. Although a tree may merit protection on amenity
grounds it may not be expedient to make it the subject of a TPO. It may be expedient to
make a TPO if the council believes there is a risk of the tree being cut down. The risk
need not be immediate.
10. Many councils find it convenient to delegate the
function of making TPOs to an officer and to put in place arrangements to act at short
notice during and outside normal office hours.
11. Before making a TPO an officer of the council
should carry out a site visit. Any person duly authorised in writing by the council may
enter land for the purpose of surveying it in connection with making or confirming a TPO .
However, a visit to assess whether a TPO may be justified may be made without entering the
land.
12. After making a TPO the council must inform those
affected and must consider any objections it receives . Councils should bear in mind that,
since they are "both proposer and judge" ie since they are responsible for both
making and confirming TPOs, "the obligation to deal thoroughly, conscientiously and
fairly with any objection is enhanced ." To consider objections and representations
properly, it may be necessary to carry out a further site visit. Discussion between the
council and any objector is encouraged as this can lead to a greater understanding of each
side's point of view and help clarify the main issues which have to be considered.
13. The council must then decide whether to confirm the
TPO . Since the council is responsible for both making and confirming the TPO, it should
consider establishing procedures to demonstrate that its decisions at the confirmation
stage are taken in an even-handed and open manner. For example, the officer could prepare
a report which could include details of all objections and representations received
together with the officer's observations on these in the light of any site visits or
discussions with people affected. A copy of the report could be sent to those who have
made objections with an invitation to submit comments before the committee meets to make
its decision.
14. There is no right of appeal against a decision to
make a TPO: a council's decision may only be challenged by application to the High Court
on a point of law
15. TPOs can render essential maintenance work
difficult with the result that owners may neglect their woodlands. Councils are advised
that it is preferable to enter into agreements with landowners for proper management of
woodland using grants from the Countryside Commission or the Forestry Commission and to
use TPOs only as a last resort.
16. Vale Royal Borough Council has no policy for
assessing which trees or woodlands in its area should be protected.
Investigation
Background
17. Mr Clerk is a builder. He has lived on his seven acre estate for 36
years since 1968, first with his parents in the Low House and then with his wife and
family in the former stable block which he converted in 1983 (the High House). Some of the
seven acres comprise garden and the rest is farmed. Mr Clerk's parents sold the Low House,
with a small area of surrounding garden in 1973. In 1994 the Low House came up for sale
again and was eventually bought, in 1999, by Mr Grant. Mr Clerk says that, in all the
years he has lived on the estate, he has not felled a single healthy tree but he has
planted many. There is a third substantial house on the same hill as the High House and
the Low House. Mr Smith lives there. All the land is Green Belt. There are no public
rights of way across any of it.
Chronology
18. On 23 January 2000 Mr Grant wrote to the Council.
It appears from his letter as though there had been previous communication between the two
concerning the trees on the hillside and this letter now invited the Council to consider
protecting all the trees on the hillside with a TPO. He said:
"I spoke to [Mr Smith] in January and he is keen to have tree preservation orders
placed on any trees on the hillside including his own trees. He also shares my concern
that [Mr Clerk] may well fell trees on his land prior to applying for planning
permission."
19. On 24 August Mr Grant wrote again to the Council in
substantially the same terms as the letter above.
20. On 8 January 2001 Mr Grant wrote to the Council:
"…as I told you before, I believe that [Mr Clerk] could well
cut the trees down that are on his land prior to putting in a
planning application for garden infill."
and on 3 May he wrote:
"…I am very happy with the plan that you sent me as it covers
all the trees that I am concerned about."
21. On 24 July 2001 Officer A, an arboricultural
officer with the Council, paid an unannounced site visit to Mr and Mrs Clerk's garden.
Officer A says that he never notifies landowners in advance of going on to their land for
the purpose of assessing trees for TPOs (although he carries identification in case he is
challenged) because a landowner alerted to an impending TPO may just chop the tree down.
He says he has authority in law to do this and the practice is approved by his managers.
Officer B, a senior planning officer of the Council, confirms this. Officer C, a Director
of the Council, whilst acknowledging this is the Council's practice, says he thinks it
ought to be reviewed.
22. Officer A says that, between Mr Grant's first
letter and his site visit 18 months later, Mr Grant's correspondence lay in his pending
tray. He says he made notes during his site visit of the identity and location of the
trees but that these notes would be on the missing file. Officer A says he has never
considered whether it might be expedient to protect the trees. Following this visit, which
was never notified to Mr and Mrs Clerk, the Council, on 19 October, issued a provisional
TPO. The TPO covered a single sycamore tree (T1), four groups of trees (G1, G2, G3 and G4)
and one woodland area (W1), comprising in total every one of over 60 trees in Mr and Mrs
Clerk's garden and two copper beech trees which were the property of Mr Grant. Interested
parties were notified that the provisional TPO had been made because the trees were
"of significant visual amenity to the general public." This report is not
concerned with the two trees on Mr Grant's land.
23. Mrs Clerk says she was taken aback to receive the
TPO and went to the Council offices to see if she could find out why it had been imposed.
Although she learned that Mr Grant had nominated her trees, she was never shown the
evidence he had offered the Council. She met Officer A but says he would not discuss the
subject with her other than to say he "could circle her entire land if he wanted
to." She asked for a site visit with officers or Members but had no response. On 21
November Mrs Clerk wrote a detailed 6-page letter to the Council, challenging both the
amenity and expediency grounds for imposing the TPO. Insofar as public amenity was
concerned, she said that the sycamore (T1)
"can only be seen clearly by us from our own land;"
the group of trees (G1)
"is only 4 metres from our horses' stables and without the benefit of a specialist's
report it appears that this particular group of fir trees are dying. Areas of brown
foliage are prominent on all 7 trees. We object to this proposal as we are concerned that
these trees may have a limited life and consequently become a danger to our nearby
property;"
the three associated groups of trees (G2, G3
and G4)
"were deliberately planted in straight lines to form the perimeter
of our tennis court. From the perspective of the proposer, visual access down to
our tennis court was not available until recently when the hedge
screen was cut down by [Mr Grant]. [These trees] are on the most
secluded part of our land and screened from the road and the public by an exquisite line
of fir trees along the boundary of our field."
The woodland area (W1):
"directly abuts the garden land of the proposer. In the event of a
preservation order being made, our entire garden land in this area
would in effect become a visual extension of the proposer's garden. Whilst our garden land
is adjacent to [the Lane], this area remains privately out of view to the general public
as our land is substantially screened from the road."
Insofar as the expediency test was concerned, Mrs Clerk pointed out that no trees in their
garden had been felled in the 36 years that her family had owned the land and asked why
her trees were being distinguished from her neighbours. Her objections were supported by
photographs in which she sought to demonstrate that most trees were out of view and only
the tips of others could be seen by the public.
24. On 12 February a report was put to the Planning
Committee with the request that it confirm the TPO without modification. The report said
that the TPO:
"originated from concerns relating to the future wellbeing of
selected trees around [the High House] and [the Low House]."
It noted Mrs Clerk's objections which were
summarised as follows:
"a) That the Order was originated at the request of the owner of the adjacent
property;
b) That the Council's officer has personally
determined the amenity value of the trees - and that they are
considered to be of little public amenity value;
c) That some of the scheduled trees are dying;
d) That similar trees within their ownership have
been omitted from the Order."
None of the Members interviewed can recall being told what the 'concerns' referred to in
the officer's report were.
The Planning Committee voted to accept the officer's recommendation and
confirm the TPO without modification.
25. The Council never acknowledged Mrs Clerk's letter
of objection and when she contacted Officer A on 27 February 2002 to find out what was
happening, she was told the Order had already been confirmed.
26. The following day Mrs Clerk wrote to Officer B to
protest at the Council's failure to acknowledge her letter, its apparent disregard of her
objections and its failure to show the photographs, which she regarded as material
evidence, to the decision-making Committee.
27. There is nothing on the Council's records (nor
apparently on the missing file) to show that Mrs Clerk's objections and photographs were
considered. Officer B, however, says:
"I can categorically state that an officer went through the objections because the
officer concerned was me."
Officer B also says that the photographs were
not shown to the Committee because:
"… there was no facility for showing photographs at that time."
28. The TPO was confirmed on 28 February and a copy was
sent to Mrs Clerk on 8 March. On 20 March, having received and considered a copy of the
officer's report (see paragraph 22) Mrs Clerk formally complained to the Council on the
grounds that the trees did not offer a significant amenity to the public, were not at
risk, and the procedure which the Council had followed in imposing the TPO lacked fairness
and transparency. In particular she said that her objections had not been communicated
fairly to the Committee nor her photographs shown to it. She also complained to her Member
of Parliament.
29. Officer C replied to Mrs Clerk. He acknowledged
that "in view of the circumstances and the large number of trees involved, it was
appropriate that the Council justify its decision transparently." He and the local
Member, Councillor R, visited the site and undertook to review the TPO. During that site
visit Mrs Clerk learned that Mr Grant, in requesting the TPO, had told the Council that
she and her husband proposed to build a bungalow on the site.
30. Mr and Mrs Clerk went to some length to research
how this misinformation could have arisen. They wrote to the Council to assure it they did
not intend nor had ever intended building a bungalow on their land.
31. As a result of Mrs Clerk's complaint the Council
decided to engage an arboricultural consultant to test the amenity criteria of the trees
and also to consider whether TPOs should be imposed on the other trees on the hillside.
32. The consultant reported on 11 July. He concluded
that many of the trees in the wider area were worthy of protection and that many, although
not all, of the trees covered by the TPO warranted inclusion "if there is any
suspicion that they may be under threat." The consultant says that he considered the
amenity value of the trees "as they can be seen from various aspects including
surrounding roads … as well as footpaths and tracks." The footpaths and tracks
to which he referred were the long drives leading to the High House and Mr Smith's house
over which there are no public rights of way. He says he did not consider whether it might
be expedient for the trees to be protected.
33. A fresh report was prepared for the Planning
Committee. It said:
"The circumstances relating to the reason for the making of a TPO on
the trees on this site have been reviewed in the light of new information. Members are now
asked to consider a site visit to examine the trees subject to the TPO and in light of new
information review the TPO."
The report continued:
"The conclusion of the Consultant's report is that the majority of
trees are deserving of TPO status if there is any suspicion they
may be under threat. This is the crux of the case and it is the reason for this report.
Further investigation has revealed that there is some uncertainty as to whether the trees
are in fact under any real threat. In terms of the potential for development affecting
them, the land … is in the Green Belt where future development is severely
restricted. In addition, the Council has no record of any enquiries made concerning
possible future development which may affect the trees.
"In view of the doubt as to whether there is a real threat to the trees, the
Committee is asked to consider visiting the site … and then decide whether the TPO
should be reconsidered."
34. None of the Members interviewed recalls being told
what the new information was. On 5 November the Planning Committee decided that:
"… a site visit take place involving the Chairman, Vice Chairman and local
Members in line with the previously agreed procedure, and a
further report on the matter be made to a future meeting of the Committee."
35. On 9 December the Council wrote to Mr Grant
notifying him of the impending site visit and asking him to say which days would suit him.
On 16 December the Council wrote again to Mr Grant saying:
"Members and officers have been asked to assemble at your property and I
would be grateful if you would inform me whether or not this will
be convenient."
Mr and Mrs Clerk were not notified of the site
visit.
36. Officer C, when interviewed, said that both parties
should have been told about the site visit but neither should have been invited nor should
Mr Grant have been given an option about the dates.
37. The site visit took place on 20 December and was
attended by Officers B and C and four Members, Councillors S, T, U and V. The Members,
when interviewed, said their purpose in attending the site meeting was to form a view
about whether the TPO was appropriate or not and to take a recommendation back to the
Committee. All the Members parked off the road in the forecourt of the Low House and
recall being met by Mr Grant. Councillor S recalls Mr Grant accompanying Members
throughout the early part of the site visit and saying he was concerned that trees in the
west were protected because they covered the end of his house which he considered
unsightly. Councillor T recalls Mr Grant making a number of interjections and 'lobbying'
Members as they went round although he says that he did not influence the outcome.
Councillor U says Mr Grant was at the meeting but he did not influence the proceedings in
any way. Councillor V says that he arrived after the others and that Mr Grant did not
accompany the group when he was there. Officer C says that when he arrived on site Mr
Grant was definitely there with the assembled party. He recalls the meeting setting off
through Mr Grant's land and then through Mrs Clerk's land although he was unsure if Mr
Grant continued on to Mrs Clerk's land. He says the party later went on to the grass verge
outside for a discussion and Mr Grant was definitely not involved at that stage. Officer
B's recollection differs from the others. He says Mr Grant did not accompany the site
visit at all. He says Mr Grant knew they were there because he had been informed but he
did not accompany the visit or discuss the TPO. Mr Grant says he did not discuss the TPOs
with any of the party or accompany them on the site inspection.
38. Councillor S says the site meeting concluded that
it should recommend revocation of the TPO. He personally was not persuaded that the trees
represented an amenity to the public and, because there was absolutely no evidence they
were at risk, he considered it inappropriate for the Council to be seen to protect private
as opposed to public interests. He says he knew of no other example of the Council
imposing a TPO on so many trees with no evidence that any was at risk.
39. Councillor T says that none of the Members thought
the TPO should have been imposed but he thought Mr Grant had pressurised Officer A. He
says there was no evidence of risk to the trees whatsoever. He says that although the site
meeting was quite informal - and there was a meeting about it one evening at the Council
offices afterwards - there was no-one who believed that the TPO should have been imposed.
He says they considered why all the trees in Mrs Clerk's garden had been selected and not
others far more prominent on the landscape and concluded that it was because the others
were not an amenity to Mr Grant. He says:
"I have absolutely no doubt at all that it was not justified to confirm the
TPO."
40. Councillor U says the issue, regardless of the
amenity of the trees, was whether there was a threat of development. He noted there were
other more prominent trees on the hillside which had not been included on the Order and
considered it important for the Council to be seen to be fair and not to promote private
interests. Councillor U says that he has "absolutely no doubt" that the
recommendation which was to go back to Committee was that the TPO should be lifted. He
says he recalls mention of misleading information and he thought Officer A had been unduly
influenced by Mr Grant. He says his general policy with trees has always been that, if
there is any doubt, the benefit of that doubt should be given to the trees. Here, however,
there was no doubt. There was no evidence of risk. He says the site meeting concluded that
it was not justified to confirm the TPO and that this recommendation was communicated
quite clearly to the officers present.
41. Councillor V says he was puzzled by the situation
which he did not consider easy. He did not understand why the TPO had ever been imposed
but thought that the Council, if it then revoked the TPO, would look stupid.
42. Officer B says the purpose of the site meeting was
to look at the trees and for Members to familiarise themselves with the trees involved
from different vantage points. He says that Members were advised they had no
decision-making power and were specifically asked not to make their views known. Members
were told: "Please be careful about expressing your views." Officer B says he
could not recall any consensus at the meeting nor any recommendation following from it.
43. Officer C says it is true that Members were
reminded not to decide matters outside committee. However, when it was put to him what the
Members had said at interview, he said:
"I believe they were of one mind."
44. Councillors S, T and U recall considering the trees
almost exclusively from Mr Grant's garden and Mrs Clerk's garden. Councillor V says the
meeting was concentrated in Mrs Clerk's garden most of the time although Members
"then walked some way down the road." But he says:
"I'm not sure what we were trying to achieve because we can't have been able to see
the trees from there."
Officer B says the trees were viewed from down [the Lane] and Officer C says some trees
were viewed from [the Lane] at the access point to Mr Grant's and Mrs Clerk's property.
45. All the Members interviewed expressed surprise that
the matter did not come up at the next Planning Committee meeting as they expected it to
do.
46. Shortly after the site meeting, Councillor S met Mr
Smith. He says Mr Smith told him Mr Grant had approached him for his support for a TPO but
he had refused it. Councillor S says he reported this conversation, which he considered
material, to Officer C with the suggestion that the Council verify this for itself.
47. On 11 January 2003 Mr Grant presented the Council
with a petition in support of the TPO. There were 11 signatories. Mr Smith was not one.
48. On 11 February Officer C wrote to Mrs Clerk, Mr
Grant and Mr Smith. He said the question about whether it had been expedient to impose the
TPO remained unresolved and, because it was neither warranted nor practicable for the
Council to impose orders on every tree of high amenity value in the area, he asked each of
them to supply any evidence they might have that any of the trees subject to the TPO might
be at risk.
49. Mr Smith, in his reply to Officer C, said:
"[he had] not expressed his views in the way [Mr Grant] had stated in his letter. It
does not affect me and it has nothing to do with me. What Mr Clerk does on his own land he
is quite entitled to do unless it falls foul of any regulations ie planning and I have no
knowledge that he intends to cut down trees.
"Regarding the letters of 23 February 2000 and 24 August 2000 (see paragraphs 24 and
25) these are incorrect and subsequently [Mr Grant] came to my house
approximately the second week in January of this year to
apologise for involving me in this matters."
50. Mr Grant also replied, on 13 February, to Officer
C. He said:
"When I was in the early stages of buying [the Low House] I had a conversation with
[Mr Clerk]. As he is a [local] builder I was very interested in what plans if any he had
for his land. He told me that if the Green Belt was ever moved from the old A49 to the new
A49 he would be looking to sell his 13(sic) acres to a major developer. In the meantime if
he could get planning permission he would like to build a bungalow for his son between
[the High House] and [the Low House].
"I was walking past a house … that Mr Clerk was renovating when
he stopped me. He told me that he had forgotten to tell me that he planned in 18 months
time to apply for 'garden infill planning' permission on the old
tennis court. He also said that he would have to get it right as he would only get one
crack at it. As the tennis court is surrounded on 3 sides by 33 lime trees I was concerned
for the safety of the lime trees.
"As there were no witnesses and nothing was in writing I cannot prove that these
conversations took place."
Mr Grant's letter concluded:
"If you do feel that you have to revoke [the TPO] would you please consider giving
advance notice to allow consultation with local people and groups. This is
especially important this year as it could become an election
issue in the Parish Council and Borough Council election."
51. Officer C says that the Council decided, in light of the final
paragraph in Mr Grant's letter, to defer reconsideration of the TPO until after the local
elections. At around this time Mrs Clerk was made aware, through her own researches, of
the letters which Mr Grant had written, in 2000, to the Council.
52. On 1 May 2003 there were local elections.
Councillors R, S and T lost their seats on the Borough Council and Mr Grant was elected to
the Parish and Borough Councils.
53. Reconsideration of the TPO did not come before the
Planning Committee until 26 August. The officer's report to the Committee said that,
although Mrs Clerk opposed the making of the Order, she did not appeal it. It also said:
"the other test of the need for a Tree Preservation Order is expediency, that is, has
the Council an indication that the trees are or may become under threat. No clear evidence
of this can be presented in this case, but it is accepted that your officer was of a view
that a TPO was necessary.
"To pursue the issue a Member site visit was held earlier this year
involving the then ward Councillors, the then Lead Councillor for Planning and the then
Opposition Spokesperson on the Planning Committee. That Member meeting
indicated the need to return this matter to the Planning
Committee for review."
The report did not say why, if there was no evidence of risk, a TPO was
necessary nor did it say what, if any, recommendation the site meeting had made. Mrs Clerk
was given an opportunity to address the meeting but she was not told about Mr Grant's
recent letter.
54. Neither Mr nor Mrs Clerk attended the meeting
although their son did. After the meeting he told them that the Committee did not
determine whether their TPO should remain, be revoked or modified. The Chairman, he said,
only asked for a show of hands in a vote regarding the assessment of further trees in the
future. The minute of the meeting says:
"The Committee considered report [P12345] of the [Director]which
requested the Committee to review its previous decision regarding the Tree Preservation
Order at [the High House]. The [Director]outlined the background to this Order and
detailed the reasons why it had been again brought before the Committee.
DECISION: The additional trees within the area be assessed for protection
under a further Tree Preservation Order."
55. Councillors W, X, Y and Z attended all the material
Planning Committee meetings. Councillors W, X and Z say they do not recall clearly the
discussion about the trees at the August meeting but Councillor Y recalls asking Officer C
why the TPO had been put on in the first place and being told he did not know. Councillor
Y also recalls the discussion being focused entirely on the independent consultant's
report and that no indication was given of any recommendation following the site visit.
Councillors W, X and Z say Members' attention should have been drawn to Mr Grant's and Mr
Smith's correspondence, especially since there was a conflict between them. Councillor W
says Mr and Mrs Clerk should 'possibly' have been shown the letters and Councillor X says
it would have been fair for them to have seen them because councils have to be open.
Councillor Z says that, had he read the letters, his opinion of risk would have been
different. Councillor W says Members are often asked to view photographs and have done so
for many years. They are either put up on display boards or circulated as slides. All the
Members said they thought the matter should have been referred back to the Planning
Committee sooner. Councillor Z said there was no planning reason for the matter to have
been deferred and deferral to the August meeting was curious because, being the holiday
season, meetings are often thinly attended then. Councillor V, who chaired the Committee
Meeting, said the lapse of time and change in Members between the site visit and the
Meeting made nonsense of the site visit.
56. On 8 September Officer A wrote to Mrs Clerk telling
her that:
"At the meeting on 26 August the Planning Committee did not revoke or modify the
existing Tree Preservation Order but asked that further trees in this area be assessed for
potential formal protection."
No action to assess any further trees has, to
date, been taken.
57. On 22 September Mrs Clerk complained to me.
The Interview with Mr Clerk
58. Mr and Mrs Clerk were shown Mr Grant's 13 February
2003 letter to the Council by my investigating officer. Neither had known of it before. Mr
Clerk was then interviewed in person.
59. Mr Clerk says he can think of no reason why Mr
Grant might have concluded that he had plans to develop his land. Mr Clerk says that the
conversations Mr Grant alleges to have had with him around the time he was buying his
house are a "total and absolute lie."
60. Mr Clerk says he had two conversations with Mr
Grant before he bought his house. The first was after Mr Grant phoned him to ask if he
could come to see him. He came with his wife early one summer evening when he and Mrs
Clerk were on the patio and the possibility of Mr Grant buying additional land was briefly
discussed.
61. Mr Clerk says the next conversation between the two
was at a house he was renovating. Mr Clerk was inside at the back of the house when his
workman called him to the front. There he saw Mr Grant. Mr Grant told him he had made an
offer for the Low House so he was going to be his new neighbour. Mr Clerk says they had a
brief chat about the colour of the rubber surrounding PVC windows then Mr Grant went on
his way. They were together no more than three or four minutes. There was no mention of
development plans.
The Interview with Mr Grant
62. Mr Grant says that when he first suggested to the
Council that the trees might be at risk, he had "no evidence that he could put on the
table" beyond Mr Clerk being a builder.
63. Mr Grant says that the first conversation he had
with Mr Clerk was outside his house although there had been no arrangement to meet. He
says Mr Clerk told him then that he hoped the old Green Belt boundary would be moved and
he hoped to get planning permission for the lot. Mr Clerk said, however, that it was too
big for him and he would get a developer. Mr Clerk's other plan, he said, was to build a
bungalow for his son. Mr Grant says that he believed Mr Clerk but nonetheless went ahead
with buying his house because an estate agent told him development by Mr Clerk would
enhance the value of the Low House too.
64. Mr Grant was told that Mr Clerk had now read his
letter of 13 February 2003 and had described its contents as a "total and absolute
lie." In light of this conflict of evidence it was put to Mr Grant that Mr Clerk's
account seemed the more convincing for the following reasons. First, Mr Grant's
credibility has been undermined by Mr Smith's recent letter to the Council. Mr Grant
acknowledged this. Secondly, when interviewed, Mr Clerk had presented as a quiet, private
man who would not discuss his affairs with anybody. Thirdly, it seemed highly unlikely
that a builder, of whatever character, would interrupt a job to tell a virtual stranger
about sensitive development plans he proposed for the future. Fourthly, Mr and Mrs Clerk's
son lives an independent life overseas. He already owns property in this country. He does
not sound the sort of young man who would settle in a bungalow in his parents' garden.
Finally, a TPO did not preclude development yet, four years after his allegations had been
made, there was no indication that building was in prospect. Mr Grant did not challenge
this conclusion nor any of the reasons on which it was based.
Site Visits
65. The site was visited separately by two of my
investigating officers who considered whether, as a matter of fact, the trees were visible
from a public place. At the second site visit, Mrs Clerk said she had made a mistake about
the sycamore (T1) which she acknowledged could be seen from the public Lane. My
investigating officers say that T1 and G1 can be seen on the skyline; the tips of some
trees in G2 and G3 can be seen, also on the skyline, but neither was able to discern any
trees in G3 at all. A large sweet chestnut was prominent in W1 apart from which only parts
of one or two trees could be seen with difficulty through the dense hedge screen.
Conclusion
66. The Council has not been helped by its lack of a
policy for identifying appropriate trees or woodland for protection in its area. This has
left it vulnerable to pressure from those with a vested interest in protecting some trees
whilst other trees, of equal or greater merit, escape restriction.
67. There are undoubtedly unscrupulous people who, if
alerted to an impending TPO, will fell the trees. Parliament crafted its legislation with
them in mind. It provided a two stage process: a provisional order following preliminary
assessment (which, for trees judged to offer visual amenity to the public, should be
possible from a public place) followed by a 6 month period in which to consider whether,
in all the circumstances, the order should be confirmed. I cannot believe Parliament
intended Council officers, whether carrying authorisation or not, to roam through private
gardens unless there are particular circumstances which make it wise for them to do so. I
can see no reason why Officer A, who took 18 months to assess the trees, did not make an
appointment. The same is true of Members who, in the company of officers, walked through
Mrs Clerk's garden on their subsequent site visit, without contacting her first. This was
discourteous and poor practice.
68. The Council has not been helped either by having no
criteria against which to evaluate risk. There is no evidence that risk was considered
before the TPO was confirmed. Before then, Mrs Clerk objected to the TPO and her
objections, well researched and clearly expressed, challenged not only the public amenity
of her trees but also the basis for the Council's belief that they were at risk. The
Council had a statutory duty to consider those objections thoroughly.
69. Mrs Clerk said the majority of trees were not
visible to the public and others could scarcely be seen. Whether the trees are, as a
matter of fact, visible to the public is material. Regardless of a tree's merit, it is
unlikely to be a visual amenity to the public if it cannot be seen. And if only part of it
can be seen, should there not have been a special reason for protecting it? Mrs Clerk said
that the trees in G1 looked as though they were dying. That too is material and its
communication to the Planning Committee in the general statement that "some of the
scheduled trees were dying" was not, in my view, an accurate reflection of the
reference to specific trees which Mrs Clerk had made. Finally Mrs Clerk said that, in the
36 years her family had lived on the land, they had never felled any trees. That was
material information which the Members should have been told. Officer B's assertion that
he considered Mrs Clerk's objections is not supported by any record on the file or by the
report to the Planning Committee for which he was responsible. Nor is his excuse that
photographs could not be shown because there was not a facility for showing them at all
convincing. Had Mrs Clerk's objections been properly considered as they should have been,
everyone is likely to have been spared the exercise, anguish and expense which followed.
Failure to deal properly with her objections and to communicate them fairly to the
Planning Committee was maladministration.
70. By the time the Order was confirmed and Mrs Clerk
complained, the Council was in difficulty. It knew Mr Grant had a vested interest in
securing the trees. It knew Mr Clerk was a builder but it had no evidence he had ever
harmed healthy trees. It had been told no healthy trees on Mr Clerk's land had been felled
for 36 years. Also, it knew that land was protected from inappropriate development by the
Green Belt legislation. Where was the evidence of risk?
71. The employment of a consultant, who had no brief to
evaluate risk, did not assist the Council. His report simply confirmed what it already
knew: that many trees in the area were, in terms of amenity, worthy of protection but
without evidence that any was under threat, the law did not entitle the Council to impose
an order for their protection.
72. The Council then briefly got itself back on track
with a site meeting which considered both the amenity value of the trees and the
expediency of protecting them. The former Members are clear and convincing about the
conclusion they reached and that conclusion should, in my view, have gone straight back to
the Committee.
73. The Council should not have allowed itself to be
blown off course again by Mr Grant's last letter, with allegations which I find
unconvincing, and his threat to make the TPO an election issue. Having heard from Mr
Smith, the Council had reason to be cautious before attaching any weight to Mr Grant's
allegations about risk. Above all, it had a duty to be even-handed and, in deferring
reconsideration of the TPO until after the election, it denied Mrs Clerk a timely response
and the opportunity to have the TPO reconsidered by the Members who had visited the site
and apprised themselves of the issues.
74. The report which was prepared for the August 2003
meeting was misleading. Mrs Clerk could not, as it said, remedy her complaint by appealing
the TPO. Then the Council, after all the trouble it had gone to, said it had found no
evidence that the trees were at risk but the officer nonetheless thought a TPO was
necessary. This was not a reasonable position for the Council to take. Finally, it fudged
what it knew the former Members' recommendation from the site visit would have been with
the suggestion that they "indicated the need to return this matter to the Planning
Committee for review." It is not surprising Members became so confused they lost
sight of the business in hand, discussed the general amenity of trees in the area but did
not review the TPO on the agenda, as they should have done. The testimony of Members and
the record itself is clear about that. The Council did not, therefore, review Mrs Clerk's
TPO as it had said it would. That was maladministration.
Recommendation
75. I consider that the Council's maladministration has
led to injustice to Mrs Clerk. I recommend the following action to redress that:
(a) The Council should revoke the present TPO and then
conduct a proper assessment of all the trees in the area and decide which, if any, should
be subject to a TPO. The Council should then follow the correct procedures for imposing a
TPO.
(b) The Council should introduce procedures for
identifying appropriate trees and woodland in its area for protection.
(c) The Council should consider introducing a system
for evaluating when a tree might be at risk.
(d) The Council should review its practice of entering,
as a matter of routine, private property for the purpose of assessing trees for tree
preservation orders.
(e) The Council should pay Mrs Clerk £500 for the time
and trouble to which she has been put in bringing her complaint to me and for the
frustration she suffered as a result of its actions.
Remedy
76. After considering a draft of the key facts in this
report, the Council accepted my recommendation in full. I commend it for its prompt action
in agreeing to settle this complaint.
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