Tree preservation order — Application to reduce height of trees — Consent given subject to conditions — Work to be carried out by contractor approved by Arboricultural Association — Claim for compensation under section 203 of the Town and Country Planning Act 1990
tree preservation order was made by Bromley London Borough in respect of 40
trees of various species in the spacious garden of a house in Beckenham — The
order included 26 horse chestnuts listed as a group which formed a row along
the boundary with allotment gardens owned by the borough — The trees were
closely planted and had been pollarded — In 1989 a request by the claimant to
prune the trees or arrange for the work to be carried out was registered by the
council as an application to reduce the height of the trees — Consent was given
in February 1990 subject to conditions including one that the work be carried
out by a contractor approved by the Arboricultural Association — The claimant
obtained estimates from three firms, one of whom carried out the work for
£1,250 plus VAT — He maintained that but for the condition requiring him to
employ an approved contractor he would have been able to do the work himself,
with help from fellow residents and friends, at no cost — Alternatively, he would
have been able to employ a competent but unapproved contractor at considerably
less cost — He submitted that the main beneficiaries were the allotment holders
on the adjoining council land, which had been severely screened by the trees
from sunlight
including VAT and deducting an estimated cost of, say, £400 plus VAT for hiring
additional plant and wear and tear of equipment, the award was £977.50 plus
costs of £106
claimant’s view that the work could have been done more economically by
employing an unapproved contractor
equipment to enable him to do the work — With fellow residents he had
successfully taken down dangerous and overhanging branches
could do the work properly and the tribunal had no evidence to suggest
otherwise
consent to the application had exacerbated the claimant’s problem by adding
another summer’s growth to the trees
ensuring safety and providing a supply of fuel but had also benefited the
allotment holders
No cases are
referred to in this report.
The claimant
appeared in person; M Mullins (instructed by the solicitor for Bromley London
Borough Council) for the compensating authority.
Giving their
decision, THE TRIBUNAL said: This is a reference under section 205 of
the Town and Country Planning Act 1990 to determine the amount of compensation,
if any, payable on the granting of an application, subject to conditions, to
reduce in height trees which are the subject of the London Borough of Bromley
Tree Preservation Order No 246.
Mr E G Deane,
the claimant, appeared in person and gave evidence. Mr Mullins of counsel
appeared on behalf of the London Borough of Bromley and called Mr R Nicholls,
an arboriculturist responsible for the protection of trees in the council’s
ownership.
The parties
have helpfully agreed a statement of facts from which we extract the following:
No 107 South
Eden Park Road, Beckenham, is a large, detached Victorian house set in a
spacious garden. To the south and west there are houses fronting a cul-de-sac
laid out in the 1930s and to the north are allotment gardens owned by the
London Borough of Bromley. Mr Deane has owned the property since 1979 and is
joint owner with his wife. The house is now divided into flats and Mr and Mrs
Deane occupy one of the flats.
Tree
Preservation Order No 246 was made in January 1985 in respect of trees in the
garden of 107 South Eden Park Road. The order covers two cedars, three yews,
two oaks, a redwood, a birch, a chile pine, a cypress, a fir, a pine and 27
horse chestnuts. One of these chestnuts is specified individually and 26 are
listed as a group; it is these 26 which are the subject of this reference.
Mr Deane
objected to the making of the order and on May 19 1985, after considering his
objection, the London Borough of Bromley confirmed the order with amendments.
The 26
chestnut trees with which we are concerned form a row of trees along the
northern boundary of the garden and continuing to the west beyond the boundary
of the subject premises. The trees have been closely planted and never thinned
but have in the past been pollarded.
Mr and Mrs
Deane maintain the garden themselves and from time to time their fellow
residents have assisted, particularly with the lopping of overhanging and
dangerous branches, which were subsequently used for fuel.
In 1989 a
major limb from one of the chestnut trees fell on to an adjoining allotment. On
September 11 1989 Mr Deane asked the council either to prune the trees or to
arrange for the work to be carried out. This was registered by the council on
September 18 1989 as an application to reduce the height of the horse chestnut
trees.
There were
four letters written by objectors to the proposed reduction in height and two
letters written in support, one from the allotment holders and the other from a
person or persons supporting safety work. Finally, on February 9 1990 consent
was given to reduce in height 26 horse chestnut trees subject to the following
conditions:
01 The development to which this permission
relates must be begun not later than the expiration of five years beginning
with the date of this permission.
98 The work shall result in the reduction of
not more than 50 per cent in the overall height of each tree.
99 The work should be carried out by a
contractor approved by the Arboricultural Association.
The reasons
given for these conditions were:
01 Section 41 the Town and Country Planning Act
1971.
98 In the interest of safety and the visual
amenities of the area.
99 In the interest of good Arboricultural
Practice.
Mr Deane
subsequently obtained three estimates for the work as follows:
£2,160 plus
VAT, from Trees
£1,735 in
total, from ISC Tree Specialist
£1,250 plus
VAT, from Dolwin & Gray.
In all cases
the brushwood was to be chipped and left on site and the remaining timber cut
into lengths and stacked on site. Of the three companies, both Trees and Dolwin
& Gray were approved by the Arboricultural Association; ISC Tree Specialist
is a local company.
Mr Deane
requested that the council pay for the work, but on September 20 1990 he was
informed that the council were unable to offer any financial assistance for
carrying out the work.
The work was
carried out by Dolwin & Gray at the end of
on site and the remaining timber cut into lengths and stacked on site.
The basis of
Mr Deane’s claim is that condition 99 attached to the consent required him to
employ an approved contractor and this cost him £1,250 plus VAT. He maintains
that but for that condition he would have been able to do the work himself at
no cost. Although Mr Deane has passed the age when most people would have
retired, he and his wife are very active in maintaining their garden and they
have the equipment necessary to do the work. They could have expected help from
fellow residents and friends. In the alternative, he maintains that if he had
been able to employ a competent but unapproved contractor the cost would have
been considerably less. Therefore he felt that the council should pay the extra
cost of having the work done by an approved contractor.
Mr Deane does
not deny that some work was necessary to some branches of the horse chestnuts
in the interest of safety. As the trees had previously been pollarded, it was a
sensible solution to pollard again. He maintains that the main beneficiaries
were the allotment holders on the adjoining council land immediately to the
north which was severely screened by the chestnut trees.
Mr Mullins,
for the council, called Mr Nicholls, an experienced arboriculturist, who had
visited the site before and after the work was done. In his view, the cost of
£1,250 plus VAT was not unreasonable and he would have been prepared to
recommend a figure of £100 or £150 in excess of that figure, as the contractor
would have had to have been one of considerable experience in the type of work
involved.
Mr Mullins
submitted that there was no evidence to support the contention that a
non-approved firm could have done the work for less and there was no evidence
to support the contention that it would have been possible for Mr Deane to do
the work himself, together with voluntary help, and at a nil cost. He submitted
that Mr Deane had an obligation to ensure that the trees were safe and that he
was the main beneficiary from the work that had been done. There was no
evidence that Mr Deane had suffered any loss and the claim should be dismissed.
We have viewed
the subject premises. We have seen the chestnut trees in their pollarded state
when they had not yet started into new growth. To the west we have seen the
extension of the line of chestnuts on to other land which have been pollarded
in the past and are now showing good growth.
The gardens of
the house, in which there are some fine specimen trees, appeared to be well
maintained. The 26 horse chestnuts along the northern boundary have been planted
much too closely and this fact, combined with severe pollarding, has led to
distorted growth. Any visual attraction when the trees are in leaf must be
marred by the break in continuity of treatment of the chestnuts to the west.
The 26 chestnuts do not screen any unsightly view. There is no doubt that the
allotment gardens to the north of the trees were severely screened from the
sunlight.
It seems to us
that the pollarding of trees has benefited Mr Deane in that safety is ensured
together with a supply of fuel for him and his tenants; but there is little
doubt that it has also benefited the allotment holders.
One would have
hoped that, in a spirit of neighbourliness, the parties could have agreed to
apportion between them the cost of pollarding. This has not happened and we are
concerned only with the narrow issue of compensation as provided by section 203
of the Town and Country Planning Act 1990, which reads as follows:
A tree
preservation order may make provision for the payment by the local planning
authority, subject to such exceptions and conditions as may be specified in the
order, of compensation in respect of loss or damage caused or incurred in
consequence —
(a) of the refusal of any consent required under
the order, or
(b) of the grant of any such consent subject to
conditions.
Tree
Preservation Order No 246 contained such a provision.
Condition 99
of the consent provided that the work be carried out by an approved contractor
and we have no evidence to support Mr Deane’s view that the work could have
been done more economically by employing an unapproved contractor.
We are left
with Mr Deane’s contention that he could, with voluntary assistance, have
carried out the work himself at no cost. Mr Nicholls is of the view that
considerable experience was required in order to do the work properly, but he
took no steps to inquire whether Mr Deane had such experience. Mr Deane has on
the premises most of the equipment to enable him to do the work. He and his
fellow residents have from time to time successfully taken down dangerous and
overhanging branches.
Mr Deane is
firmly of the view that he could do the work and do it properly over a period
of time and we have no evidence to suggest otherwise. His application to reduce
the height of the trees was made in the early autumn of 1989, but for some
unaccountable reason most of the winter passed before consent was given. This
delay in effect added another summer’s growth to the trees before pollarding
could take place. The delay added to Mr Deane’s problem.
We doubt that
the considerable task of pollarding 26 trees could have been achieved without
some cost, in particular the cost of hiring machinery or transport to deal with
the brushwood and some wear and tear to equipment.
We have no
details of costs, but doing the best we can with the evidence we have taken the
total cost of the contracted work to be £1,437.50 including VAT and have
deducted from this our estimated cost of hiring additional plant and wear and
tear of equipment, say £400 plus VAT, which results in a figure of £977.50 and
that is the amount of our award.
We have
received written submissions as to costs. The claimant’s costs in this
reference are to be paid by the compensating authority in the sum of £106.
