Members considered the following planning application report:-
Description of Application
(12/03084/TPO) – Fell one oak tree (T.1) in front garden SUBJECT TO TPO 2459 at 10 Crab Hill, Beckenham, BR3 5HE.
Oral representations were received from Mr Clive Lees of the Ravensbourne Valley Preservation Society. Speaking on behalf of the owner of 10 Crab Hill, Mr Lees submitted the following points in objection to the felling of the tree:-
This application had been deferred on two occasions. In June 2012, Members deferred in order to explore the possibility of a root barrier. The Quaife report confirmed that a root barrier would be effective, a letter from Crawfords confirmed they were happy to proceed with one and MWA (the applicant), visited the site and confirmed that a root barrier could be installed. This would be an effective solution and the loss adjusters and MWA were happy to proceed with it. Therefore, Mr Lees could see no reason why the TPO should be lifted.
At the second Sub-Committee meeting in September 2012, Members noted that experts considered the measurement of the movement of the property to be technically incorrect and that the proper solution would be underpinning. The Committee deferred making a decision in order that an independent report could be commissioned to review how the movement of the property had been measured. It was, therefore, very disappointing to note that the Quaife report made no reference to the very issue that Members wished it to.
The fundamental evidence had not changed. There had been three separate investigations of the roots found in the boreholes (‘BH’). In the first, dated January 2012 by Richardson’s, all the roots recovered from both boreholes were either unidentifiable or dead. In the second, again by Richardson’s, dated July 2012, no confirmed oak roots were found in BH1 and all the roots that were found were dead anyway. DNA analysis confirmed that the roots in BH1 were not related to T1. BH1 was located next to the bay window. If all the roots were dead in this vicinity and not shown to be related to T1, then what was causing the subsidence within the vicinity? Additionally, what was causing the subsidence at the rear of the property, much further away from the tree?
During the same investigation, (July 2012), two oak roots were found in BH2 (next to the garage) but could only be described as ‘alive recently’. Only one root from BH2 was confirmed by DNA as belonging to T1. All of the above amounted to very slim evidence. Quaife made no acknowledgement of the impact of very dry weather (confirmed by the Met Office) or that every older property in the immediate area had required underpinning. Notwithstanding the evidence (or lack of it), as mentioned earlier, the loss adjuster and MWA had indicated that they were willing to proceed with a root barrier.
Mr Lees requested that the application to fell the tree be refused.
Oral representations from visiting Ward Member Councillor Tickner were received at the meeting. He indicated that this item raised a point of principle for the Development Control Committee because the outcome could shape the way in which future matters involving TPOs were determined. The Council had a duty under the Town and Country Planning Act to protect as many trees as possible - currently there were over 2,000 TPOs in place across the Borough.
The tree in question had been in situ since the 1920s and the surrounding houses were built in the 1930s. Most of the houses in the vicinity had since been underpinned including the property at No.10 following which, there had been no further problems relating to subsidence. As underpinning appeared to be an appropriate solution, Councillor Tickner urged Members to refuse the application.
Ward Member Councillor Mellor stated that this was a contentious issue within his Ward. The tree in question had been established prior to the construction of the property at No.8 which was built on a clay sub-soil and the foundations of the property were too shallow for the size of the house. The damage to No.8 had been assessed as 'not severe'. Other properties, including No.10, had been underpinned however, the insurers sought to blame No.10 for the damage caused to No.8. The evidence produced was not conclusive as other unidentifiable roots had been found. T1 may not therefore be the primary cause of the damage and it was interesting to note that the applicant also agreed that a root barrier would solve the issue. Councillor Mellor alluded to the statement made in paragraph 2 on page 13 of the report which stated that underpinning was often a remedy for subsidence in the past but in more recent years insurers had sought tree removal, together with cheaper repairs. Councillor Mellor moved that the application be refused.
Councillor Michael agreed that the problem appeared to stem from the lack of sufficiently robust foundations at No.8 although roots may have been a contributory cause which could be solved by underpinning. This was a very attractive tree which added to the amenity and character of the area. Members should not be intimidated by the threat of compensation costs and should strive to protect trees whenever possible. Councillor Michael was concerned that a precedent would be set if the application was permitted. For the reasons outlined above, Councillor Michael seconded the motion for refusal.
Councillor Joel supported refusal and gave an historic summary of building regulations around the time the properties were constructed. This was prior to the introduction of the 1965 Building Regulations and would have been governed by Bromley By-Laws which differed significantly to those currently in existence.
The Principal Tree Officer informed Members there were no guidelines for determining by levels of percentage, whether trees were a cause of damage and not the cause; there was no requirement for it to be demonstrated beyond reasonable doubt. Trees in question need only prove to be a contributory factor not the main factor. She stipulated that previous court cases had always gone against Councils and in the last year, the Authority had paid compensation in excess of £25k each in two separate cases. Compensation was paid for any loss and damage caused by the Council's decision.
A survey on drains had been undertaken in 2011 which showed there were no defects or leaks. Underpinning would be the ideal solution to the problem and costs for the work would fall to the Council. Members were advised that the Council could not choose the solution to be used as this was entirely at the discretion of the affected parties and their insurers.
Councillor Mrs Manning was surprised that Councils' decisions were overturned by Courts and that a percentage of cause was not taken into consideration by them. In this particular case, it appeared that roots did not have any impact on the property concerned and it was disappointing to note that although the rear of the property was also damaged (this was double the distance away from the tree in question), it was not mentioned within the report.
Councillor Buttinger was keen for the tree to remain protected. She asked if the two previous court cases differed significantly from the matter currently being considered. It was reported that the first court case concerned a tree in Bromley North which was located on the opposite side of the road to the damaged property. The Council paid for the costs of underpinning the property. The second case concerned an extension to the rear of a property in Farnborough which was moving. Again, the Court found in favour of the applicant as the Council could not prove that the extension had not been built in accordance with building regulations. The Principal Tree Officer could not recall any successful cases by any Authority where trees were involved in matters of subsidence. She confirmed that the estimated cost of works which could be claimed (and for which the Council would potentially be liable), was in the region of £88,000 and that solicitors had written to intimate that they would lodge a claim in the event of a refusal of permission to fell the tree.
Councillor Arthur was concerned that the removal of the tree would not resolve the problem as there was no evidence to indicate that the tree contributed to the damage caused. The establishment of a root barrier would be a sensible solution. It was quite clear that the damage was caused by a lack of adequate foundation when the property was built.
Councillor Fawthrop said judges should give their reasons for going against Councils' decisions and the reasons should be minuted at that time.
Councillor Fookes stated that the consultants' report concluded that evidence had been provided which demonstrated that the oak tree was a contributory factor. For this reason, he moved that the application be granted.
RESOLVED that CONSENT FOR TREE WORKS BE REFUSED on the following grounds:-
1) The oak tree is considered to make an important contribution to the visual amenities of this part of the Downs Hill Conservation Area and its loss would be seriously detrimental to the amenities of the area as a whole.
2) The Council considers that insufficient evidence has been submitted to justify the felling of the oak tree and alternative works, such as the installation of a root barrier have not been fully investigated.