APPEAL DECISION NOTICE
The Planning Tribunal held an unaccompanied site visit on 3rd September 2020 and this was
followed by a public appeal hearing on 12th November 2020 at the Victor Hugo Suite, St Pierre Park Hotel, Rohais, St Peter Port
Members: Mr Stuart Fell (Presiding), Mr David Harry and Mr John Weir
Appeal Site: La Pointe, Route du Braye, Vale Planning Reference: PT90 Date Tree Protection Order: 29th January 2020 confirmed: Appeal Case Reference: PAP/001/2020
• The Appeal is made under section 43 of The Land Planning and Development (Guernsey) Law 2005 and section 20 of the Land Planning and Development (Special Controls) Ordinance, 2007.
• The appeal was made by Mr S Holland and Mr G Munro on behalf of Hillstone Guernsey Ltd against the decision of the Development & Planning Authority (“the Authority”) made on 29th January 2020 to confirm a Tree Protection Order on land at La Pointe, La Route du Braye, Vale, and described as an area of trees comprising 46 trees in total, (23nr European Ash, 13nr Sycamore, 7nr Black Poplar, 2nr Elm, 1nr Hawthorn).
• The appellants were represented at the hearing by Mr S Holland, Director of Hillstone Guernsey Ltd, Mr A Ozanne, OBE (Lovell Ozanne & Partners Limited, Architects), Mr J Le Gallez (Strategic Planning & Property Limited), Mr R Loyd (Tree Dimensions, Arboricultural Advisory and Consultancy), and Mr E Sexton (Sexton Green Landscapes, Landscape Architects).
• The Development & Planning Authority was represented by Deputy V Oliver, President of the Development & Planning Authority (Deputy Oliver was the Vice President when the Tree Protection Order was confirmed in December 2019), Mr J Rowles, Director of Planning, Ms C Barrett, Director of Policy, Mr A White, Principal Conservation & Design Officer, and Mr A McCutcheon, States Arboricultural Officer, Agriculture, Countryside & Landscape Management Service (“ACLMS”).
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The Decision 1. The appeal under Ground (a) is allowed in part. The Tree Protection Order (“the
Order”) is confirmed but is modified so as to only include certain trees which are listed as follows and identified by the numbers given to them on the attached plan (which, for convenience, utilises the numbers already assigned to the trees in the appellants’ documents). The 23 trees included in the Order are: T1, T2, T3, T4, T7, T8, T9, T10, T11, T19, T20, T33, T35, T36, T37, T38, T39, T40, T41, T42, T43, T44, and T45.
Procedural matters 2. The consideration of this appeal has been complicated by the fact that an associated
planning appeal under section 68(1) of the Land Planning and Development (Guernsey) Law, 2005 (“the Law”) has been made in respect of a proposed residential development on the site. This appeal will be considered at a separate hearing. Some of the written submissions and documents are common to both appeals, requiring us to make a careful separation between the two appeal procedures. We appreciate the assistance that has been given by the parties to achieve this, and in providing prompt responses to the Tribunal’s Written Directions issued in advance of the hearing.
3. In our pre-hearing assessment of the written submissions we identified the need for
a single plan of the site, at a reasonable size, showing all the significant characteristics of the trees in question. We are grateful to Mr Ozanne for providing such a plan, which was admitted into the evidence before us with the Authority’s agreement.
4. During our initial assessment of the appeal documents we identified a number of
what we perceived to be procedural shortcomings on the Authority’s part in the making of the Order and we took the unusual step of sharing these interim findings with the Authority. Having considered these matters at a Committee meeting on 30th September 2020, the Authority advised that it was satisfied that its decision had been properly made. On this basis our interim findings were set to one side and our approach to the appeal reassessed to ensure that we applied an appropriate level of objectivity to the proceedings.
5. In light of the COVID-19 linked restrictions on travel into the Bailiwick of Guernsey,
the Tribunal had to adapt its usual procedures, namely:
(a) The site visit, which would usually be held after the hearing and with the parties present, was conducted on Thursday 3rd September 2020 and was an unaccompanied visit. Mr Fell, a Jersey resident, travelled to Guernsey via a Business Tunnel exemption and met on site with Mr Harry and Mr Weir and the Tribunal’s Secretary. The Tribunal members spent just over one hour on site and in the immediate surroundings. A number of photographs were taken and these were shared with the parties; and
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(b) The hearing was also held using a Business Tunnel exemption and Mr Fell, Mr
Weir and Mr Harry occupied a separate room at the St Pierre Park Hotel from the parties, the members of the public and media who attended the hearing. The Tribunal members were linked to the parties via a video link.
6. In order to provide context for the grounds of appeal in this case, an outline of key
events is first set out and many of the points raised will be explored in detail later in this decision.
7. After the hearing was closed two mis-codings of tree category and condition were
noted on the reference plan used during the hearing. Account of these has been taken in the preparation of this decision.
Introduction and an outline of key events leading to the confirmation of the Order 8. The appeal site is a triangular, undeveloped piece of land which lies on the eastern
side of the junction between Braye Road and Les Mares Pellées. The trees in question extend along both road frontages behind a continuous low stone wall. There are no trees along the inner, eastern boundary.
9. In late 2017, following the decease of the previous owners, formal advice was sought
on behalf of the heirs on the development potential of the site. The aim was to secure outline planning permission for residential development before offering the property for sale to potential developers.
10. The Authority responded in January 2018, advising that there was planning support in
principle for residential development, subject to considerations of density, housing mix and so forth, and drawing attention to other matters such as vehicular access and the possible impact on neighbouring protected buildings.
11. In February 2018 a follow-up enquiry was made on behalf of the heirs of the estate.
This generated a further response from the Authority explaining that an outline planning application would not be appropriate for this site because of the proximity of protected buildings. It goes on to say, “…if you wish to proceed on the assumption that the site could accommodate 10 or more dwellings (as appears likely), then the Planning Service will add this site to the list of those awaiting preparation of a development framework”.
12. In neither of these two letters does the Authority draw attention to the significance
of the existing trees on the site, notwithstanding the provisions in section 42(a) of the Law which places an obligation on any Department of the States when exercising its functions under this Law to secure as far as possible that existing trees are protected.
13. When asked during the hearing why the significance of the trees had been
overlooked at this initial stage, Mr Rowles conceded, with the benefit of hindsight, that this had been an unfortunate omission.
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14. Mr Holland confirmed at the hearing that when Hillstone Guernsey Ltd purchased the site in June 2018, the nature of the pre-application correspondence was an important factor. He formulated a proposal for eight houses and submitted a planning application for this on 9th October 2018 which was validated by the Authority on 22nd October 2018.
15. During November 2018, a number of objections were made to the planning
application, many of which brought specific attention to the positive contribution the appeal trees were considered to make to the character of the area. Mr White explained in his response to the Tribunal’s Written Directions of 20th July 2020 that, “… representations to this planning application suggested that the trees should be protected”.
16. Two months later, on 1st February 2019, Mr White emailed Mr McCutcheon, the
States Arboriculturalist and the Authority’s expert consultant on tree matters, asking him to undertake an Order assessment. It was not until the hearing that any written confirmation of the nature of this commission was brought to light, despite earlier Written Directions asking for such information. The request relates to the need for assessments on two separate sites, one of which is the appeal site. It is expressed in the following terms:
“La Pointe is a priority - ASAP please. There's a planning application under conservation (FULL/2018/2602), which has a number of buildings in very close proximity to the trees although they claim the development will not negatively affect the trees. I wouldn't be surprised if the developer get the chain saws out.”
17. Mr McCutcheon made his assessment on 6th February 2019 and submitted his report
on 11th February 2019. His recommendation was that an Order was justified and should be applied ‘to the whole line of trees as a group order’. He considered that the making of an Order would be expedient, and commented that ‘there may be a risk that the site will be subject to pre-emptive felling of some or all of the trees’.
18. Notwithstanding the perceived threat to the trees that is graphically described in Mr
White’s commissioning email and expressed in more measured terms by Mr McCutcheon, the Order was not activated until 29th October 2019, an interlude of eight months since the Order assessment had been undertaken.
19. During this eight month period the planning application for eight houses had been
refused and a second application for 6 houses had been made following pre- application advice. This application had been under consideration by the Authority for about 16 weeks when the Order was registered.
20. Following the registration of the Order the appellants submitted a range of
objections, as provided for in section 13(1)(c) of the Land Planning and Development (Special Controls) Ordinance, 2007 (“the Special Controls Ordinance”), and the question of whether or not to confirm the Order was considered by the Authority at its Committee meeting on 18th December 2019. The Committee decided to confirm
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the Order without alteration (other than minor factual amendments) and its decision was put into effect by notice dated 29th January 2020.
Grounds of appeal and the Tribunal’s powers 21. Section 20 of the Special Controls Ordinance provides that an appeal against a
decision to confirm an Order can be brought on two grounds. These are that: a) It is not in the interests of amenity to provide for the protection of the tree, group
or area of woodlands in question or of any tree in such group or area, or b) The confirmation of the order was (for any other reason) ultra-vires or
unreasonable
The appellants have made submissions in support of both of these grounds of appeal.
22. Section 8(3) of the Land Planning and Development (Appeals) Ordinance, 2007 (“the Appeals Ordinance”) sets out the Tribunal’s powers in relation to the grounds of appeal. If we are satisfied that one or more, but not all, of the trees should be protected in the interests of amenity, we may modify the Order so that it only relates to those trees we consider should be so protected. If we are satisfied that confirmation of the Order was, for any other reason, ultra vires or unreasonable, we must quash the Order. If we conclude on neither ground has been satisfied we must dismiss the appeal.
Main issues 23. From our assessment of the written submissions made by the parties, and what was
given in evidence during the hearing and seen during our site visit, we consider that there are two main issues in this appeal:
(1) Whether it is expedient in the interest of amenity for the trees in question to be
subject to a Tree Protection Order; and (2) Whether the procedures followed in the assessment of the trees, the registration
of the Order and the decision to confirm the Order were so unsatisfactory that the decision can be considered unreasonable or ultra vires.
Guidance used in the Tree Protection Order assessment process 24. The process followed in the assessment of the trees and the registration of the Order
is a central aspect of this appeal and we have therefore examined this closely. The broad context is that in 2009, when a new planning law was introduced, the existing scheme of regulatory controls over work to trees was relaxed and the concept of Tree Protection Orders was introduced whereby trees of significant amenity value could be given statutory protection. As a comprehensive assessment of all the trees in the Island would be impracticable, the decision was made to focus Orders on trees of amenity value which were perceived to be under threat of felling or harm. The
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Order at La Pointe was the ninetieth such designation to be made since the new Law came into effect in 2009.
25. There is clearly a need for detailed guidance which translates the statutory objective to protect trees into effective assessment procedures. There are four such documents in play. We examined each of these with the parties so as to determine their relevance and the weight that should be accorded to them by decision makers and others involved in Order process.
26. Though the status, and indeed the very existence, of this suite of documents was
obscure at the start of the appeal process, by the end of the hearing the position was very clear, as described below, and has the agreement of the Authority.
27. In ascribing weight to such documents, Mr Rowles agreed to the proposition put to
him by the Tribunal that policy and guidance documents will tend to accumulate weight according to the degree of consultation they have undergone and the level at which their adoption or approval is confirmed. These principles reflect accepted practice within other planning jurisdictions.
The Authority’s 2009 Guidance 28. We took the view that the appropriate place to start was with the Authority’s
document entitled Tree Protection Order for Guernsey, dated 2009, which was prepared by the then Director of Planning Policy. It was written with a view to explaining to the members of the Environment Department Board the scope and detail of the new Tree Protection Order procedures which came into force in April 2009 when the Land Planning and Development (Guernsey) Law commenced. As the summary explains, the paper indicates that Orders should be made against amenity and risk criteria at officer level, and the political members of the Authority would undertake the role of deciding whether or not to confirm an Order where objections have been made. The paper comprises five pages of detailed explanation and guidance and it was approved by the Environment Department Board on 13th January 2009.
29. A second part of this report is entitled Tree Protections Orders: Amenity Assessment.
It comprises three further pages of more detailed guidance on the amenity assessment process and related matters. The unambiguous recommendation to the Environment Department Board was,
“… that trees should be assessed for the making of Orders using the procedures, methodology and factors set out in this paper.”
This document was approved by the Board on 27th January 2009.
30. Mr White had confirmed in his written submissions that this two-part report, which
we will refer to for convenience as the 2009 Guidance, has the status of current guidance. Mr Rowles did not deny the suggestion we put to him during the hearing that the 2009 Guidance deserves the highest level of weight and status that can be
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accorded to planning documents of this kind. This document has never been published and this is a matter that we will return to in our consideration of the second ground of appeal.
31. In the light of this agreed position it is reasonable to expect that the 2009 Guidance
should from that time onwards have provided a solid and robust basis for all further work by the Authority when making such Orders. It is very unfortunate that this turned out not to be the case because it transpired, as Mr Rowles explained during the hearing, that these documents were overlooked as a result of staff changes and were not, if ever, utilised in the manner intended. Indeed, as Mr White explained in his written submissions, he only became aware of the existence of this guidance shortly before the hearing.
32. Notwithstanding this position it is clear to us that we have no alternative but to treat
the 2009 Guidance as the foundation document which should inform our assessment of the amenity value of the trees on the appeal site and the decision on whether the making of the Order can be justified.
Tree Preservation Orders: A Guide to the Law and Good Practice, 2006 33. The second document we considered is UK guidance, published by the Department
for Communities and Local Government. We will refer to it as the UK Good Practice Guide. It seems relevant to us for two reasons. First, it was clearly a significant influence in the preparation of Guernsey’s 2009 Guidance, reflected in the fact that much of the content is replicated verbatim from the part of UK document that deals with the amenity assessment and the designation process. Second, it was agreed between the parties during the hearing of a 2012 appeal in relation to an Order made on land owned by the Guernsey Tennis Club (Ref: PAP/040/2012) that the UK Good Practice Guide provides relevant guidance in the Guernsey context.
34. While accepting this position in general terms, Mr Rowles suggested that guidance
prepared in other jurisdictions, being subject to different statutory controls and policy frameworks, should be used with caution, a position on which we agree.
35. With these factors in mind, we conclude that the UK Good Practice Guide can be
accorded significant weight, but principally as a means of supporting the Guernsey 2009 Guidance and by providing broad clarification and interpretation on matters relating to the assessment of trees and key elements of the designation process.
Survey and Decision Assessment 36. One of the most important documents in this appeal is the report prepared by Mr
McCutcheon following his site inspection in February 2019. Its full title is Tree Protection Order (TPO) – Survey and Decision Assessment. In the Tribunal’s pre- hearing Written Directions dated 20th July 2020, the Authority were asked to explain how and when this document was formulated. The response was that “… the document was formulated by Director of Policy
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37. (now retired) and Landscape and Countryside Officer (now retired) when the Land Planning and Development (Guernsey) Law, 2005 and its associated Ordinances were enacted in April 2009”. It goes on to say “This law introduced Tree Protection Orders into Guernsey. Therefore, in formulating the document research was undertaken including guidance from UK jurisdictions”.
38. The Tribunal wrote to the Authority on 26th October 2020 requesting a blank copy of
the Order Survey and Decision Assessment pro-forma used by Mr McCutcheon and any associated notes explaining how the pro-forma should be completed. The pro- forma was duly provided, but no further information was forthcoming.
39. A more complete picture of the origins of this document emerged during the hearing.
Mr McCutcheon made two statements about its origins and background, explaining first that the document originated in Tandridge District Council in England and that he “brought it with him” to Guernsey. We see no reason not to take this evidence at face value as Mr McCutcheon was very clear about it. The UK local planning authority origins of this document may explain the disparity we had noticed between the structure and terminology of this document and that of the Guernsey 2009 Guidance.
40. We have since satisfied ourselves that the document to which Mr McCutcheon referred does exist and is contained within current planning guidance published by Tandridge District Council. We note that it was last updated in 2014. The booklet is titled Tree Preservation Orders – Administration and Service Guidelines and the Survey and Decision Guide at Appendix 1 is identical to that used by Mr McCutcheon in his assessment of the trees at La Pointe.
41. The second point made by Mr McCutcheon was that the above document was itself
formulated in the light of a UK system of assessment for Tree Preservation Orders (as they are described in the UK) called TEMPO. Once again, we have no reason not to accept this evidence at face value. However, we find it regrettable that contextual information such as this about a key document in this appeal should only come to light during the hearing at the very end of a protracted appeal process.
42. With these matters in mind we are obliged to accord weight to the document so as to
inform our conclusions on the matters under appeal. In doing so we have taken into account that this survey and decision assessment has not been subject to any consultation process in Guernsey, such as that undertaken in respect of the selection criteria for Protected Buildings, nor does it appear to have been scrutinised or approved by a Board or Committee of the Authority. We have also taken into account the view expressed by Mr Rowles and referred to earlier in this decision that UK guidance must be used with caution. Our conclusion is that the weight to be attached to this document must be substantially less than that accorded to the 2009 Guidance, which therefore takes precedence if any conflicts arise between the two documents.
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British Standard 5837: 2012 43. The full title of this document is BS 5837:2012 Trees in relation to design, demolition
and construction- Recommendations (British Standards Institution, 2012). Its specific focus is project design and construction but its significance in this appeal lies in the detailed guidance it provides on the qualitative assessment of trees and on matters of condition and longevity. It appears to be a basic ‘industry’ reference in situations where planning, trees and development interact.
44. The British Standard was used to inform Mr Loyd’s assessment of the trees that he
undertook on behalf of the appellants in November 2019 and was subsequently submitted to the Authority as part of its objections to the Order. Mr McCutcheon’s advice to the Authority on the assessment system set out in Table 1 of the British Standard was that it provides an entirely valid approach, with the caveat that trees growing in groups or lines might attract a higher amenity rating than individual trees because of their landscape value.
45. We are aware that the British Standard has been used in other appeals with the
agreement of the Authority, including those at The Barn, Maurepas Road, St Peter Port (Ref: PAP-011-2018,) and at Gandhi Ahimsa, Montville Road (Ref: PAP-012- 2016). We accordingly attach significant weight to the advice in this document.
46. A fifth document, not considered in detail during the hearing, is Planning Advice Note
No. 4, version 2 of which was published by the Authority in April 2016. It is the only local published guidance on protected trees to which our attention has been drawn. The document follows a question & answer format. While its specific focus is on the controls that apply to trees already subject to an Order, Question 2 is helpful in the context of this appeal. This asks “What is the purpose of a Tree protection Order?”. The answer “To protect trees which bring significant amenity benefit to the local area. This protection is particularly important where trees are under threat.”
The first issue - whether it is expedient in the interest of amenity for the trees in question to be subject to a Tree Protection Order 47. Though the term amenity is not defined in the law, the first part of the 2009
Guidance provides a useful starting point where it states, in the introduction “Orders are likely to be applied only to trees which make a particular contribution to amenity and which are also identified as being at risk of damage or felling”. This echoes the statement referred to earlier in Planning Advice Note 4, where a similar phrase “significant amenity benefit” is used.
48. The 2009 Guidance goes on to provide a clear explanation of how the term amenity
should be interpreted “… it clearly means more than the appearance of a tree or its locality”, and goes on to advise that, “amenity may include such varied qualities as visual, landscape character, screening, shade/shelter, wildlife/biodiversity and pollution control”.
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49. We note that Mr White took a different view on most of these matters when he advised the Committee in December 2019 that they were not relevant matters, and that it was essentially the visual qualities of the trees that should inform their decision on whether or not to confirm the Order. We are aware, of course, that neither Mr White nor Mr McCutcheon was aware of the existence of the 2009 Guidance until very recently. In any event the Survey and Decision Assessment checklist used by Mr McCutcheon includes many of these criteria, reflecting its origins within the UK planning system where the underpinning government advice is provided in the UK Good Practice Guide referred to earlier.
50. In relation to the appeal trees we agree with Mr McCutcheon’s general conclusions
that the trees in question are highly visible within the local environment and play a significant role in softening the appearance of a heavily developed urban area. The visual cohesiveness of the tree lines is not in doubt, nor is the secondary contribution that the trees make, or could potentially make, in terms of biodiversity and pollution control. We did not detect any fundamental disagreement from the appellants on these broad points.
51. We made our own assessment of the trees during our site visit and noted a number
of key characteristics, the most significant being a variability in the visual impact that individual trees and clusters of trees present within the larger group. We saw that the stretch of Les Mares Pellées adjoining the site has the character of a narrow and heavily planted rural lane, with dwellings on the north set back within gardens. There were 16 trees on the appeal site frontage at the time of our visit, a mixture of Ash, Poplar and Sycamore, as well as a single Hawthorn. We saw that the individual trees vary in height with a group of noticeably taller trees at the eastern end next to the site entrance. The modest width of the road causes the trees along the northern site edge to be seen obliquely, with the result that the gap created by the recent felling of two of these trees is not readily apparent until seen at close quarters.
52. In contrast, Braye Road is a heavily used Traffic Priority Route that is much wider than
Les Mares Pellées. Its more open character in the vicinity of the appeal site is due to the large, prominent car park that serves the industrial estate on the south side of the road. There are 30 trees on this frontage, predominantly Ash, with some Sycamore, a single Poplar, and 2 Elm trees. Once again there is a taller, denser and more dominant cluster towards the eastern end of the line of trees. On both frontages the tree canopies merge but are raised to a level such that views can be obtained into and through the site. This is especially noticeable in viewpoints from Braye Road.
53. The two roadside lines of trees converge towards the junction of Les Mares Pellées
and Braye Road and follow the curved shape of the site on the eastern side of the junction. We saw that the tree canopies here do not merge strongly, resulting in a conspicuous gap in the more or less continuous perimeter planting. When approaching from the west, this gap invites views into and through the site to the houses beyond.
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54. It is clear to us from our site visit that an Order assessment for this site would be relatively complex, given that the majority of Orders already made by the Authority have involved single trees or linear tree groups of modest size. The appeal site contains an unusually large number of trees, 46 in all, aligned along two road frontages that are quite different in character, and where development of the site was under active consideration when Mr McCutcheon made his assessment. He advised us at the hearing that he had spent about half-an-hour on site making his assessment.
55. Mr McCutcheon freely acknowledged in his brief written report to the Authority
dated 11th December 2019 that his work,
“… was limited to assessing the visual appearance of the trees as a general measure of health and did not include a detailed assessment of each and every tree.”
It continues,
“… since the overall visual amenity value was considered high for the tree group as a whole and it was known that the site was being proposed for development it was considered expedient to apply an Order to all trees.”
56. In response to question 2(a) on the Assessment checklist asking whether “the trees
are in good or typical condition and form for the species with no hazardous irremediable defects”, Mr McCutcheon’s affirmative answer was justified on the basis that, “Virtually all the trees appear to be in good condition, appear structurally sound and in general represent good specimens for their species and type”. Our interpretation of the qualifying terms “virtually all” and “in general” implies that he was aware that some of the trees might not meet the good or typical standard of condition and form that he described. This interpretation was not disputed by Mr McCutcheon when we queried this point at the hearing.
57. We consider that this generalised approach to a critically important stage of the
Order process is inappropriate for a number of reasons. First, the wording of section 20(a) of the Special Controls Ordinance is explicit in stating that,
“… an appeal may be brought on the ground that it is not in the interest of amenity to provide for the protection of the tree, group or area of woodlands in question or of any tree in such group or area.
The reference here to any tree indicates to us that the characteristics of individual trees is a legitimate matter for consideration by decision makers and therefore needs to be addressed at the survey and assessment stage.
58. Second, the 2009 Guidance states, under the heading Assessment of Amenity, that,
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“… the assessment of trees will require a judgment to be made of the value or benefits of those trees including, inter alia, the trees [sic] condition and potential remaining lifespan”.
We consider that the condition and longevity of individual trees is a matter than cannot be ignored, or averaged out across 46 trees, and we note that the lack of attention to the issue of tree condition proved to be a determinative issue in the appeal at Gandhi Ahimsa referred to earlier.
59. Third, in the 2009 Guidance under the heading Preparing the Order, it is stated:
“During the site visit the officer should gather sufficient information to draw up the Order with accuracy. The officer should accurately record the number and species of the individual trees or groups of trees and their location.”
However, it was confirmed in written submissions and at the hearing that, other than two photographs, no notes or records of any other kind were made during Mr McCutcheon’s site assessment.
The key matters of form, condition and longevity 60. One of the fundamental arguments made by the appellants is based on the same
considerations as those outlined above, that insufficient attention had been given to individual trees that make up the group, and that this was, in effect, a blanket listing.
61. We determined that the only satisfactory way to deal with this would be to review
each tree during the hearing with the parties’ arboricultural experts. Mr Loyd had prepared a detailed survey of all 46 trees on the site in November 2019, using the assessment process set out in the British Standard and Mr Holland had submitted this to the Authority. Mr Holland explained that Mr Loyd had spent some 15 hours on this work. As explained earlier, Mr McCutcheon had accepted the validity of this approach.
62. The first step in the assessment process, summarised at Table 1 of the British
Standard, involves placing each tree in one of four categories relating to quality and longevity. The categories are A, which denotes high quality trees with a life expectancy of at least 40 years; B, denoting moderate quality trees with a life expectancy of over 20 years; and C, relating to trees of low quality (or young trees), with a life expectancy of at least 10 years. The final category, U, signifies trees unsuitable for retention, i.e. “… in such a condition that they cannot realistically be retained as living trees in the context of the current land use for longer than 10 years”.
63. The next step is to assess each tree against three qualitative criteria which describe
the tree’s arboricultural, landscape and cultural/conservation quality. The British Standard requires that the assessment is made by an appropriately qualified arboriculturalist, a requirement that Mr Loyd satisfies.
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64. None of the 46 trees were placed by Mr Loyd in Category A, while 10 were assigned to Category B and 13 to Category C. The remaining 23 trees, which lie predominantly at the western end of the site, were placed in Category U.
65. It is clear from the Appellants’ written submissions made at the end of November
2019 that only certain trees were in contention, and that they would withdraw their objection to the Order if only the Category B trees were included. These are trees T2, T3, T4, T8, T9, T10, T35, T39, T40, and T41. Mr Rowles acknowledged at the hearing that this proposal had not been brought to the attention of the Authority’s members in December 2019 when the Order was confirmed. We can find no reason not to include these 10 trees in the Order.
66. Of the 36 trees that remain in contention we will deal first with two trees on the Les
Mares Pellées frontage which were recently felled with the agreement of Mr McCutcheon and the Authority. These are tree T5, an Ash tree considered at risk of catastrophic failure, and tree T6, a Sycamore, which was deemed to be hazardous. Both these trees had been placed by Mr Loyd in Category U.
67. In his report dated 9th August 2020 Mr Loyd drew attention to four further trees
assigned to Category U which he considered to be at risk, presenting “a tangible threat of structural failure within a short timeframe”. These are trees T12 (Ash), T18 (Sycamore), T26 (Sycamore), and T31 (Ash).
68. We invited Mr McCutcheon to contest Mr Loyd’s assessment of these trees by
considering each of them in turn, but he felt unable to do so without undertaking a physical examination on site. We advised that as there had been ample opportunity for him to examine the trees closely we were minded to reach a conclusion on this matter on the basis of the evidence already before us and any further expert testimony he could offer at the hearing. Mr McCutcheon declined to challenge the findings reached in Mr Loyd’s report. In the light of the 2009 Guidance which advises against protecting trees in poor condition, we judge that these trees should not be included in the Order.
69. We turn next to the 13 trees placed by Mr Loyd in Category C. Mr Holland’s view,
reiterated at the hearing, is that these trees should be excluded from the Order. Mr Loyd’s conclusions are ambivalent, however. We have therefore reviewed each of these trees in the light of Mr Loyd’s assessment, relying also on our own judgment based primarily upon our site visit and taking account of other relevant evidence placed before us. With one exception we will follow the numbered sequence of trees indicated on the reference plan used during the hearing.
70. T1 is a Sycamore tree situated next to the site entrance which Mr Loyd considers to
be of average form and condition where arboricultural management is needed. We saw that this tree, though slightly detached from the larger Poplar trees to the west, nevertheless strengthens the visual cohesiveness of the linear tree group along this road frontage, making a significant contribution in eastward views along Les Mares Pellées. It also provides a pleasant visual termination when seen from Roseland Lane
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to the north. We are accordingly satisfied that this tree should be included in the Order.
71. T7 is a Hawthorn tree forming part of a larger group where Mr Loyd recommends
retention and management. We agree that this tree makes a positive contribution, not least because it adds variety to the species mix, and we conclude that it should remain within the Order.
72. T11 is an Ash tree that lies under the crown of a larger Sycamore, T10. Mr Loyd
ascribes average condition, poor form and low retention value to T11 but nevertheless grades it in Category C. Given that the adjoining tree T12 is to be removed for safety reasons we conclude on balance that the positive contribution made by T11 to the somewhat diminished group of trees on the Les Mares Pellées frontage is sufficient to justify its inclusion in the Order.
73. T19 and T20 are Ash trees. Mr Loyd describes T19 as being of average form and
condition where management is needed, while T20 is regarded as being of average form and low vitality with fencing materials included in the stem. We have no doubt that these two adjoining trees contribute positively to the form and cohesion of the linear group along the Braye Road frontage, especially in view of their prominent location at the road junction. The question for us is whether these trees have sufficient individual merit to warrant protection as part of a larger group. While this is a finely balanced decision we have determined that this is the case, and that their inclusion in the Order is justified.
74. We will next consider T45, an Ash tree on the Braye Road frontage, as it is numbered
out of sequence. Mr Loyd considers it to be of average form and condition and recommends maintenance. We are satisfied that this tree contributes positively to the amenity value of the roadside group and for this reason warrants inclusion in the Order.
75. T33 raises similar issues to T11, being a slightly problematic tree of poor form,
average vitality and difficult long term retention, but nevertheless placed in Category C. Mr Loyd makes no case on grounds of safety or disease to remove it. While this is another finely balanced decision our conclusion is that T33 plays an important role in strengthening the visual impact of the larger group and its inclusion within the Order is accordingly justified.
76. T36, T37 and T38, being two Elms and a Sycamore, are relatively small trees that form
a sub-group associated with two larger Ash trees, T35 and T39. All three are regarded by Mr Loyd as having low retention value, and T38 in particular is ascribed poor form and vitality. Because these three trees appear to us to form an integral part of a larger cluster of trees with a strong visual presence, we conclude that they warrant the protection that the Order provides, particularly as their removal would weaken the visual impact that this group now possesses.
77. Trees T42, T43, and T44 are respectively two Sycamores and an Ash tree. They form
another sub-group at the eastern end of the line of trees and are associated visually
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with T41, a larger Poplar tree. While this trio raises similar issues as the previous sub- group, having low retention value in Mr Loyd’s assessment, we consider them to be important visually because they mark and reinforce the eastern end of the tree coverage provided by the linear group as a whole. The removal of these trees, particularly T44, would result in the opening up of a view into the site on the approach from the east, which we consider would be detrimental. For these reasons we conclude that the retention of these trees in the Order is justified.
78. We deal finally with the 17 remaining trees whose inclusion in the Order was
disputed, all of which were placed in Category U by Mr Loyd. These are trees T13, T14, T15, T16, T17, T21, T22, T23, T24, T25, T27, T28, T29, T30, T31, T34 and T46. Mr Loyd’s justification for their exclusion from the Order was based on his detailed assessment of the form, vitality and condition of each tree. Mr McCutcheon declined to engage in discussion about the merits of these trees at the hearing on the basis that having not carried out a detailed investigation he was not in a position to make a constructive contribution. As Mr Loyd’s expert assessment was not challenged by the Authority, and we can find no legitimate reason on amenity grounds to override it ourselves, we conclude that the 17 trees in question should be removed from the Order.
79. Our overall conclusion on the first issue, having carefully considered the expert
written and oral evidence and what we saw during our site inspection, is that while the inclusion of many of the trees in the Order is warranted on amenity grounds, the case for the inclusion of many of the other trees is inadequate when considered against the criteria set out in the 2009 Guidance and in the British Standard. Before a final conclusion can be reached on this appeal the second issue must first be considered.
The second issue - whether the procedures followed in the assessment of the trees, the registration of the Order and the decision to confirm the Order were so unsatisfactory that the decision can be considered unreasonable or ultra vires. 80. In relation to the question of vires, we sought to ascertain in advance of the hearing
whether the appellants were able to clarify the basis of their appeal under these grounds. Mr Ozanne provided a written response reiterating the broad arguments that had been presented in earlier written submissions, but in essence reserving his clients’ position on vires until the hearing.
81. During the hearing we asked Mr Le Gallez whether he wished to pursue, on his
clients’ behalf, the claim of suspected political influence in the Authority’s decision to confirm the Order. This matter had been raised in the original appeal statement and in subsequent written submissions. Mr Le Gallez declined to pursue this. The question of vires was not specifically pursued by the appellants at the point towards the end of the hearing agenda where the parties were encouraged to raise any matters of concern that had not already been examined up to that point. The matter of vires was not raised in the appellants’ closing statement.
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The reasonableness of the decision 82. In the light of a number of shortcomings in the Tree Protection Order assessment and
decision-making process that were admitted by Mr. Rowles during the hearing, we are obliged to consider whether these either individually or collectively render the decision so unsound as to satisfy us on this ground of appeal. We will consider the significant points in turn.
Pre-application advice
83. The pre-application advice for this site that was given by the Authority in relation to the principle of residential development made no reference to the potential significance of the trees that line the prominent boundaries. While a developer of Mr. Holland’s experience will be aware of the risks involved in development, we consider that he was entitled to expect that important planning issues should have been identified at this stage, particularly given the duty regarding the protection of trees imposed in section 42(a) of the Law. Mr Rowles conceded at the hearing that this had been an unfortunate omission.
The timely involvement of the States’ Arboriculturalist
84. During the Authority’s Committee Meeting in December 2019 the President of the
Committee made clear her expectation that when an application was submitted where trees were a prominent feature, Mr McCutcheon’s advice should be sought in a timely fashion. We believe that such an expectation is entirely consistent with the statutory duty imposed on the Authority. However, it became clear during the hearing that Mr McCutcheon was not consulted at all on the application in question (Ref: FULL/2018/2602) and he was only invited to prepare an assessment several weeks after the planning application was validated, a response triggered by concerns about the trees that had been raised in objections to the application. While this might be an isolated case, we consider that a review of the timeliness of the Authority’s consultation process regarding trees would be appropriate.
The lack of approved guidance
85. We consider the absence of approved guidance designed to inform the entire Tree Protection Order assessment and designation process is a significant concern in this case. Detailed guidance had been prepared, consulted on and approved by the Former Environment Board in 2009 but was subsequently overlooked. It became clear at the hearing that the Survey and Decision Assessment pro-forma used by Mr McCutcheon was a document formulated many years earlier in a UK planning authority and had never been formally considered, consulted on or approved by a Board or Committee of the Authority. This fundamental breakdown in the validation of the guidance framework relating to Tree Protection Order designation is a serious matter. Deputy Oliver and Mr Rowles agreed with our conclusion that this issue requires an urgent and critical review and more robust procedures put in place. At the hearing, Deputy Oliver gave an undertaking that this would be progressed as a matter of priority for the Authority.
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The question of transparency
86. An important aspect of this matter relates to the lack of transparency of the Tree Protection Order assessment and designation process, which is one of the major complaints made by the appellants. This matter was discussed at the hearing in the context of the States Customer Charter, which contains the key statement “Our promises to you - the decisions and actions that we take will be handled openly and transparently”.
87. It is our opinion that the procedures relating to the tree protection bear close similarities to those already applied to protected building designations. In that case the selection criteria and decision-making processes are explained in considerable detail and are published. We commend this approach, and can find no reason why the same principles should be not followed where Orders are concerned. For the avoidance of doubt, as there seemed to be some misunderstanding on this point at the hearing, we do not suggest that the owners of trees should be advised in advance that an Order is being contemplated, but that once an Order has been made, the full justification for this should be provided to the owner, including the selection criteria that were used.
The adequacy of the expert assessment
88. The survey and assessment stage is a critical part of the Tree Protection Order procedure and has attracted considerable criticism in this unusual case, arising partly from the large number of trees involved and the superficial nature of the survey. We have explained in the body of this decision that the need for a close examination of each tree was necessary in this case and that a decision to recommend an Order based on an average estimation of quality, condition and longevity is simply inadequate. The 2009 Guidance also gives explicit instructions about the sort of information that should be gathered during the survey. While we understand that this guidance was not available to Mr. McCutcheon, it does not excuse the fact that no record was made of this important site assessment other than a couple of photographs, which were not submitted to us. It seems to us that the Authority has failed to manage this process satisfactorily and must ultimately bear the responsibility for any inadequacies in the survey or in the scope of the data collected.
Expediency and threat
89. The 2009 Guidance explains that there may be circumstances where an Order is justified on the basis of the amenity value of the trees but it would not be expedient to proceed. The example it presents is of “… trees which are under good arboricultural or silvicultural management”, in other words where the risk of harm to the trees is very low. These were not the circumstances that obtained in this case where a threat was posed by a live planning application which proposed to remove many of the trees.
90. The planning context is important and it is well understood. It is not disputed that the
owners of the appeal land could at any time prior to the registration of the TPO have
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removed any or all of the trees without restraint or penalty. With this important consideration in mind, we see no value in deferring the registration of the Order and consider that to do so brings into question whether the duty imposed under section 42(a) of the Law is being satisfied.
91. In his written submissions, Mr White offered three reasons why the registration of the Order had been deferred for eight months following the receipt of Mr McCutcheon’s report. The first was that the risk of felling was perceived to be low because the appellants had made a commitment not to fell the trees. On this point we share the view expressed by Deputy Oliver during the hearing that little value can be ascribed to commitments made by any developer in these circumstances, as a developer can change their mind at any stage.
92. Mr White’s second reason was the Authority might be able to secure the retention of the trees as part of the negotiation of the planning application that was under active consideration In February 2019. It is our view that to defer registration of the Order on this basis does nothing to mitigate the level of threat to the trees. It also tends to conflate the statutory process of making Tree Protection Orders with the regulatory planning process of development control. Mr Rowles had commented on this matter at an early stage of the hearing by confirming that these were independent procedures which should be kept entirely separate. We are not satisfied that an appropriate degree of separation has been achieved in this case.
93. Mr White’s third reason was that there had been no lobbying from the public or politicians asking for the decision on whether or not to protect the trees to be made by the members of the Authority. We discount this explanation for two reasons. First, as the 2009 Guidance makes clear, a decision on whether or not to confirm an Order is always a matter for the political committee of the Authority. Second, a decision on an Order should be made solely on the amenity value of the trees in question, as interpreted by the guidance documents referred to in this decision.
94. Our conclusion on this matter is that once an Order has been recommended and justified by the Authority’s expert advisor and a clear level of threat articulated, as it was in this case, then a significant delay in registering the Order, which would nullify the threat, runs contrary to the duty imposed by section 42(a) of the Law. When the Authority were invited at the hearing to explain the material planning benefits that would arise from the deferral of the registration of the Order no response was forthcoming.
The form of the Tree Protection Order
95. The Order in question is defined as an area TPO. Section 43(1) of the Law provides that an Order may be made in relation to “any tree, group or area of trees or woodlands” and the 2009 Guidance explains how these terms should be interpreted in practice. In relation to the ‘area of trees’ category, the Guidance states, “Using the area classification is an alternative way of specifying scattered individual trees”, and “It is preferable that the area classification should only be used in emergencies, and then only as a temporary measure until the trees in the area can be assessed properly
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and reclassified”. In the introduction to the Guidance the “groups of trees” classification is summarily described as a cohesive group of trees whose canopies merge”.
96. At the conclusion of his Survey and Decision Assessment of February 2019, Mr McCutcheon recommends that an Order be made in the form of a group order encompassing “the whole line of trees”. We note that this reflects the way in which lines of trees have been classified in earlier Orders. Mr Rowles confirmed at the hearing that if the Order was to be made currently, it would be defined as a group Order.
The decision to confirm the Order made by the Authority at the Committee meeting on 18th December 2019
97. On the basis of the evidence given at the appeal hearing and provided in the
transcript of the recording of the Committee meeting on 18th December 2019, we found the basis of this decision to be procedurally unsatisfactory on a number of counts. While we see no benefit in exploring these matters in detail, we consider the most significant issues to be as follows:
• The briefing paper presented to the Committee was in some important respects incorrect, notably by playing down the importance of the quality, condition and longevity of the trees on the site, which were advised by officers to be matters more relevant to the live planning application than to the Order decision;
• The all-important written report on the trees prepared by Mr Loyd and submitted by Mr Holland in support of his objection to the Order was not included in the Committee briefing papers, and only circulated the day before the meeting, giving members little time to properly assimilate its contents;
• The written offer made by the appellants whereby they would withdraw their objection to the Order if certain trees were removed was not put before the Committee;
• The decision in the Gandhi Ahimsa case (PAP/012/2016 refers), where an appeal against the Order was allowed because of a lack of attention on the Authority’s part to the question of tree condition, was not brought to the attention of the Committee;
• What discussion there was about matters such as tree longevity and Ash dieback was uninformed and relatively brief, and as the States’ Arboriculturalist was not present at the meeting, expert advice was not available to the members;
• The advice in the briefing papers on the range of matters that might be considered under the term “amenity” was incorrect in that it was too restrictive;
• Much of the discussion revolved around the planning controls that apply to protected trees, a matter that has little relevance to the key question before the Committee which was whether the trees at La Pointe have significant amenity value such as to justify the Order designation.
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98. In his closing Statement at the hearing Mr Rowles acknowledged many of the
shortcomings that have been identified throughout this decision, but argued that these should not be considered fatal to the Order.
99. After careful consideration of the evidence before us in this case, our conclusion is that the cumulative effect of these deficiencies is very near to fatal, and substantial improvements in all aspects of the TPO process are now essential before further designations should be made.
100. However, our conclusion on this second ground of appeal is that we are satisfied that the Authority’s decision cannot be considered ultra vires or otherwise unreasonable to the extent that we must quash the Order.
101. Our overall conclusion in this appeal is that as we have not been satisfied on the
ground that the decision to confirm the Order was ultra vires or otherwise unreasonable, and we are satisfied that it is in the interest of amenity that many of the trees should be protected, we will modify the Order in the terms explained in the decision below. The trees that we consider worthy of inclusion in the Order fall naturally into four distinct groups, as indicated on the attached plan.
102. We have considered all other matters raised in the written submissions and during the hearing, as well as the observations we made during our site inspection, but none of these affect our conclusions in this case.
Decision 103. The appeal under Ground (a) is allowed in part. The Tree Protection Order (“the
Order”) is confirmed but is modified so as to only include certain trees which are listed as follows and identified by the numbers given to them on the attached plan (which, for convenience, utilises the numbers already assigned to the trees in the appellants’ documents). The 23 trees included in the Order are: T1, T2, T3, T4, T7, T8, T9, T10, T11, T19, T20, T33, T35, T36, T37, T38, T39, T40, T41, T42, T43, T44, and T45.
Stuart Fell DipArch RIBA IHBC Presiding Member
Date of Issue: 26th November 2020
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The Land Planning and Development (Special Controls) Ordinance, 2007
Location: La Pointe, La Route du Braye, Vale, Guernsey Reference Number: PT90 Planning Appeal Reference: PAP/001/2020 Date of entry on TPO Register: 25th October 2019 Date of planning appeal decision: 26th November 2020 Description of trees: Four distinct groups of trees comprising 23 trees in
total, namely and with reference to the attached plan Group 1 – T33, T35, T36, T37, T38, T39, T40, T41, T42, T43, T44 and T45; Group 2 – T19 and T20; Group 3 – T7, T8, T9, T10 and T11; Group 4 - T1, T2, T3 and T4. (NB: the tree reference number is based on the tree survey drawing prepared by Lovell Ozanne at the Tribunal’s request for use at the appeal hearing, namely AA28-10342-S1-30 Revision B dated 2nd November 2020)
TREE PROTECTION ORDER – LISTING CONFIRMATION
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The Land Planning and Development (Special Controls) Ordinance, 2007
Location: La Pointe, La Route du Braye, Vale, Guernsey Reference Number: PT90 Planning Appeal Reference: PAP/001/2020 Date of entry on TPO Register: 25th October 2019 Date of planning appeal decision: 26th November 2020 Site Plan:
TREE PROTECTION ORDER – LISTING CONFIRMATION