DEVELOPMENT AND INFRASTRUCTURE SERVICES PLANNING PROTECTIVE SERVICES AND LICENSING COMMITTEE

18th May 2016 ______

FURTHER UPDATE AND RECOMMENDATION FOLLOWING MAKING OF PROVISIONAL PRESERVATION ORDER 01/16 IN RELATION LAND AT KINLOCHLAICH, APPIN ______

SUPPLEMENTARY REPORT No. 3

A) INTRODUCTION

Members approved the making of a provisional Tree Preservation Order (TPO 01/16) in relation to several on land at Kinlochlaich, Appin at the meeting on 16th December 2015.

The provisional notice of the proposed formal TPO was duly published and notification given to the owner of the trees, as a result of which an objection to the confirmation of the Order was received within the statutory 28 day publicity period. Further relevant information was subsequently received and this formed the basis of ‘Supplementary Report No. 1’ which was presented to Members at the Meeting on 16th March 2016 and requested a period of continuance to enable the objection and the relevant details to be properly assessed. Members agreed to this request.

This current and final supplementary report, which supersedes the recently issued Supplementary Report No. 2 in the light of the most recent information, is to re-appraise Members as to the broad content of the objection to the provisional TPO, to the findings of an independent report prepared at the request of the objector (and owner of the trees/land), to the content of a recent letter from the original proposer of the TPO and to summarise the examination of these findings and to recommend that the provisional TPO be withdrawn pending re-evaluation and recommendation at a later date.

B) REPRESENTATIONS SUBSEQUENT TO THE MAKING OF THE PROVISIONAL TPO

The provisional TPO was made, following approval by Members on 15th January 2016.

The Town and Country Planning (Tree Preservation Orders and Trees in Conservation Areas) (Scotland) Regulations 2010 provides that a provisional TPO will expire unless confirmed by the Planning Authority within 6 months from the date on which the provisional Order took effect; in this case by 15th July 2016.

An e-mail communication from the owner of the affected trees, Mr Donald Hutchison of Kinlochlaich, Appin was received on the 25th January 2016. This communication registered an objection to the confirmation of the provisional Order and posed several questions of a procedural and evidential nature, all of which have now been discussed with Mr Hutchison and responded to directly. Mr Hutchison is a Chartered Member of the Institute of and operates a local garden centre nursery.

A further e-mail communication from Mr Hutchison was received on 23rd February 2016. This correspondence attached an initial arboriculture survey of the trees. Further discussions have since taken place and a finalised version of the arboriculture report has recently been submitted. The objections raised by Mr Hutchison together with the broad findings of the arboriculture report are summarised below:  The proposed TPO is not appropriate. The trees within and immediately surrounding the site of the approved planning permission for a new dwellinghouse (permission reference 15/00788/PP) are controlled by a planning condition which seeks the submission of an independent tree survey, clearly indicating those trees to be retained and those to be removed. The arboriculture survey has since been prepared and submitted.

 The plan accompanying the provisional TPO contains factual errors in relation to the identification of trees, namely misidentification of several of the tree species and misrepresentation of the positions of several of the trees.

 An arboriculture survey has now been prepared and submitted to the Planning Authority. This report, by a qualified and experienced arboriculturist, identifies 14 trees towards the south and south east margins of the development site and arranged in three general groupings as being within the family Abies (‘fir’ trees). The plan prepared by the Planning Authority for the provisional TPO identifies the same trees as being ‘cedars’. This identification is refuted by the owner of the trees and appears to be substantiated by the findings of the arboriculture report. ‘Cedar’ trees can belong to several family groupings but are not, it is alleged, within the family Abies.

 The arboriculture survey has examined the health and condition of each of the trees within and surrounding the development site (including all of the trees within the provisional TPO). There appears to be no dispute regarding the provisional TPO in so far as it relates to the individual specimen trees to the north and north west of the development site. All of these trees have been assessed as healthy and undamaged and are proposed to be retained (and secured by planning condition). The ‘fir’ trees within the family Abies, on the other hand, have been assessed as exhibiting various issues that would immediately threaten their long-term viability and amenity value – The submitted report states that they are generally dead / part-dead / part-decayed and/or damaged, with several having suffered lightning strikes.

The arboriculture report and the detailed objection to the provisional TPO have been examined in consultation with the Council’s Amenity Services Technical Officer who has verbally agreed with the report’s findings.

On the basis of the arboriculture evidence summarised above it is the considered opinion of the Local Planning Authority that the original recommendation to make provisional TPO 01/16 was fundamentally flawed and, although well intentioned, following a request for tree protection by a member of the public, was presented to Members without sufficiently detailed examination of the numbers, positions, species or condition of the trees themselves as has subsequently been alleged and would appear to be substantiated following the submission of a detailed arboriculture report.

Whilst the trees the subject of the provisional TPO, and many others outwith the provisional TPO area but within the same land ownership, do undoubtedly add to the general visual character and the perceived quality of the area, it is alleged that the majority of these are not worthy of legal protection due to their health and/or condition. In addition to the specimen trees referred to above, the provisional TPO included 17 individual trees identified as belonging to three distinct groups. All of these trees were identified in the provisional TPO as ‘cedars’ but are claimed within the arboriculture report to be ‘firs’.

Of the 7 trees proposed in Group 1, the arboriculture report states that all of them (plus a further tree not identified by the provisional TPO) should be removed. All of the trees in the identified Group 1 are identified in the arboriculture report as ‘fir’ trees and all fall into one of two condition categories; either Category Ui, Trees that have a serious irremediable, structural defect, such that their early loss is expected due to collapse or Category Uii, Trees that are dead or are showing signs of significant, immediate or irreversible overall decline.

Of the 6 trees proposed in Group 2, the arboriculture report again states that all of them should be removed. All of the trees in the identified Group 2 are also identified in the arboriculture report as ‘fir’ trees and, again, all fall into one of the two condition categories, Ui or Uii as stated above.

All of the Group 1 and Group 2 trees are therefore recommended for early in the submitted arboriculture report. Within Group 1, four of the trees are recommended for re-planting with appropriate native species and 1 of the trees in Group 2 is proposed for re-planting. These findings and conclusions have been verbally verified by the Council’s Amenity Services Technical Officer although further examination of the submitted detail is required.

Of the 4 trees proposed in Group 3, the arboriculture report identifies only 2 existing trees; these being a ‘fir’ tree and a ‘lime’ tree. Of these, the ‘fir’ tree has been identified for early felling due to falling within Category Uii, Trees that are dead or are showing signs of significant, immediate or irreversible overall decline. The ‘lime’ tree, however, is recommended for retention and future protection through the creation and maintenance of a ‘root protection area’ (RPA). These findings and conclusions have also been verbally verified by the Council’s Amenity Services Technical Officer.

A further letter has also been received by the original proposer of the TPO, Mr. Allan J. Colthart. Mr Colthart makes the following comments in support of his request for a TPO:

 My reason behind [the request for a TPO] is that these trees are part of the integrity of the surrounding planned landscape (along with others not listed as part of the Tree Preservation Order process such as the Oak tree lined avenue and others) which frames the setting for Kinlochlaich House a Grade B -Listed building allied with the gardens being one of the visitor attractions in the area as listed in the Glorious Gardens of Argyll.

 The trees in question are significant to the site and were omitted by the applicant from the original site plans and then subsequently detailed in later drawings when I advised that the site plan was inaccurate. The applicant’s agent referred to the reason behind the omission of these trees was that they were going to be felled; there was no mention of this in the Design Statement.

 Since the temporary Tree Preservation Order was put in place earlier this year, I have followed up this issue for the retention of the TPO with my local councillors where I received a written notification that there has been a tree survey commissioned by the applicant. I ask were the details of this tree survey:

1. Checked by the appropriate qualified officer for accuracy?

2. Was there mitigation for alternative actions such as tree surgery for retention of same included in the survey report? Thus ensuring that the landscape integrity of the site is conserved.

 I note from the report Agenda item 13- Page 221- 16 March 2016 and various newspaper articles in the Oban Times and the Scotsman that the applicant’s qualifications have been highlighted giving the impression a level of qualified expertise; the fact is that he has no horticultural qualifications, being a member of the Chartered Institute of Horticulture is not a valid academic qualification and I quote:

‘You do not need to have formal academic qualifications in horticulture in order to be admitted to membership of the Chartered Institute of Horticulture’ Further information: http://www.horticulture.org.uk/page.php?pageid=557

 I personally have 30 years’ experience working as a qualified professional both with internationally and nationally recognised professionals in the horticulture and landscape industries.

 I ask that the Tree Preservation Order is upheld in this case as a means of protecting the integrity of this important landscape not only for the Kinlochlaich House a B-Listed building but the wider landscape of this scenic area in Appin irrespective of tree misidentification by the council; the fact is that these trees exist and were planted there for a reason; by doing so it would allow the proposed house as outlined in 15/00788/PP to compliment this established setting.

In response to the above comments by Mr Colthart, it is agreed that the trees the subject of the proposed TPO do add to the landscape character of the site and surrounding area but that there is substantial evidence that the majority of the trees are not worthy of retention for the reasons outlined within the arboriculture report. The Council would not normally seek to protect trees that have realistically reached the end of their useful life. This would achieve little of substance and would not be in the best interests of the environment or represent a fair and reasonable legal burden upon the owner of the trees. Nevertheless, the information within the arboriculture report has yet to be thoroughly verified, although its findings have initially been verbally agreed by the Council’s Amenity Services Technical Officer.

Notwithstanding this, it is clear that the Council’s report which lead to Members agreeing to the recommendation that a provisional TPO be served was fundamentally flawed. Mistakes were made in the correct identification of several of the tree species and in the accurate plotting of several of the individual trees. These mistakes are not disputed by Mr Colthart. Therefore, irrespective of whether or not the findings of the arboriculture report are verified following more detailed analysis by the Council’s Amenity Services Technical Officer, it is considered that the provisional TPO as originally agreed by Members is not fit for purpose.

It is therefore concluded that the only reasonable course of action would be for Members to agree to the withdrawing of the provisional TPO 1/16, and for the Planning Authority to carry out a fresh and competent assessment of the request by Mr Colthart having due regard to all material considerations, including the findings of the arboriculture report. Such action may result in a number of different outcomes, including a new recommendation for the making of a provisional TPO should such action be considered necessary and reasonable.

C) RECOMMENDATION

It is recommended that Members note the contents and conclusions of this report and agree that provisional TPO 1/16 be withdrawn.

Author of Report: Tim Williams Date: 13th May 2016

Angus Gilmour Head of Planning and Regulatory Services