Complaints and Appeals Committee

Complaints and Appeals Committee 4 November 2010

COMPLAINTS AND APPEALS COMMITTEE

A meeting of the Complaints and Appeals Committee was held on 4 November 2010.

PRESENT: Councillor McIntyre (Chair), Councillor J Hobson and Councillor McPartland

OFFICERS: C Davies, G Field, V Flynn and B Roberts

**ALSO IN ATTENDANCE: Mrs C. Mentz (Complainant)

** DECLARATIONS OF INTEREST – Councillor McIntyre informed the meeting that she had undertaken a site visit, to see the tree in question. She confirmed that no prior conversation had taken place between herself and the complainant, Mrs Mentz, during the visit.

**MINUTES – The minutes of the meeting of the Complaints and Appeals Committee held 22 September 2010 were taken as read and approved as a correct record.

WELCOME AND INTRODUCTIONS

The Chair welcomed all present and introductions were made. The Chair advised all present of the complaints hearing procedure to be followed at the meeting.

COMPLAINANT’S CASE

Mrs Mentz was present and addressed the committee. She referred to the officer’s report and stated that, in her opinion, it contained several inaccuracies. She also objected to the Stage 2 investigation, undertaken by Mr Field, which she also felt was inaccurate and that she was threatened with compensation claim from the Council if she cut down the tree. She stated that she did not want to fell the tree at all, but that some work should be undertaken on it, before it fell and caused major damage to people and/or property.

Mrs Mentz felt that she was given no opportunity to correct the errors that arose during Stage 1 and Stage 2 of her complaint

Mrs Mentz also referred to the Council’s Tree Policy, which she claimed only addressed factual assessment of a tree itself and not its impact on the local environment. She said the Tree Policy was exacting, but offered no guidance for officers as to how trees affected people. She added that nobody wanted to see the loss of a healthy tree but that sometimes a healthy tree could just be growing in the wrong place. She felt that if no action was taken to address the problems she had with the ash tree in question, she may have to leave her home.

She said that the ash tree, which grew on Council-owned land, was 60 feet high, and she had been advised that it could grow another 15 feet with a canopy of 60 feet plus, all of which overhung her garden. She said she was living with a tree in an inappropriate location and this was in addition to the other twelve mature trees along her boundary.

Mrs Mentz handed the committee a statement and some photographs to support her complaint. These were numbered Appendix 12, 13, 14, 15 and 16, the last four of which were photographs. She added that she had lived in her bungalow for 21 years and had work undertaken in 2003, to repair previous damage from the tree roots, in her garden.

The Council had felled a large horse chestnut tree, close to the ash tree, however, this had afforded the ash tree more room and more light, and therefore its growth had increased. Mr Harris, the independent arborist employed by the Council had confirmed that this had precipitated the ash tree’s growth. The ash tree was sited one metre from her boundary and Appendix 13, a photograph, confirmed this. She added that the ash tree seeds stay on the tree, then get blown everywhere, as they were very light, and they drop for up to five months of the year. A bag of the tree seeds was shown to the Members.

Appendix 16 was a photograph of the garage roof, covered in moss, the growth of which was encouraged by tree protein. As a result, the garage roof required to be cleared and scarified Complaints and Appeals Committee 4 November 2010

twice a year, and this was done by the occupier climbing onto the garage roof, which could weaken the roof and could lead to more extensive repairs.

Appendix 14 was a photograph showing the view from the rear fence of the property and indicating the amount of the tree’s canopy that was overhanging the rear garden.

Appendix 15 was a picture showing the height of the ash tree when viewed from the front of the house. Mrs Mentz also advised the committee that the proximity of the tree trunk to the rear fence allowed access over the fence and made the house susceptible to intrusion. She also referred to the amount of antisocial behaviour that occurred in the woodland behind her property.

It was noted that the tree leaned over the fence and reached over the garden and the house, and whilst it was accepted that the tree was healthy, there was a risk that it could topple over in strong winds and cause a great deal of damage. She stated that already there had been damage to the garden by the tree roots in that the footpath had been replaced and the pergola removed as its base was distorted by the ground lifting.

In conclusion, Mrs Mentz stated that, whilst the tree was healthy, it was too close to her property, so large that it overpowered her house and garden and placed her and the property at risk, should the tree collapse. She asked that the committee consider her complaint in that the tree should be removed.

OFFICER’S RESPONSE

The Corporate Complaints Manager was present to respond to the complaint. He informed that committee that Mrs Mentz’ complaint had been delayed whilst the Council’s Tree Policy was being approved. Mr Field was present as the officer responsible for the Tree Policy.

Members were advised that Mrs Mentz estimated that the tree adjacent to her property had grown considerably, to a height of 60 feet, in the 20 years she had lived in the property. She had also claimed that the tree caused damage, created a nuisance with its falling leaves and seeds and that there was a health and safety risk to her family and property, should the tree fall in a storm. Following receipt of the complaint, the Council had undertaken some maintenance work on a number of trees in the vicinity.

In August 2009, a site visit was undertaken by the Council’s Arborist, who declared that the trees were healthy and required no additional works. As Mrs Mentz continued to complain, the Council commissioned an independent Arborist to make a second assessment of the trees, which was carried out on 12 August 2009. The second assessment reported that the trees were healthy and posed no risk to Mrs Mentz or her property. It was recommended, however, that work to the branches overhanging Mrs Mentz’ property could alleviate shading and minor fading wood, but that the work was not necessary at that time.

Mrs Mentz was informed of this outcome (Appendix 2) and that she could undertake work to the tree, or hire a contractor, at her own expense. Mrs Mentz then requested that her complaint should progress to Stage 2 and this was undertaken by Mr Field, the Business Development Manager in Streetscene Services. Appendix 4 of the report was Mr Field’s Stage 2 assessment and included information provided as to how Mrs Mentz could proceed. Some works to the lime tree and ash tree were undertaken and whilst Mrs Mentz was happy with the work done to the lime tree, she was concerned about the work done to the ash tree.

The Corporate Complaints Manager advised Mrs Mentz on 16 April 2010 that, as the tree policy was in the process of being agreed by the Council, the Stage 3 hearing should be deferred until the policy was adopted by the Council.

QUESTIONS AND DISCUSSION

In response to a question from Mrs Mentz, it was confirmed that the Council had a rolling 5-year programme for the inspection of its trees and the ash tree in question would be assessed as part of that programme. Complaints and Appeals Committee 4 November 2010

Mrs Mentz also questioned the tree policy and what it was that made a tree inconsistent with its position, as there appeared to be no guide in the policy. She said the policy did not identify trees that created a negative impact on its environment, as it only addressed the condition of the tree itself and not its surroundings.

Mrs Mentz confirmed that clearing up after the tree took up a lot of their time, for around five months of the year, and also having the clear the gutters and the garage roof at least twice a year, as a result of droppings from the tree.

It was also confirmed that the Arborists appointed would always base their survey on the health and condition of the tree and how it could be protected, rather than its impact on its surroundings.

It was also noted that the Council received a lot of complaints from residents who had moved into a house, then requested that the trees nearby be removed. This would only happen if the tree had caused damage to the property or was at risk of collapse.

Mrs Mentz presented a montage of photographs which indicated the tree in its entirety, in relation to the garden fence and the clothes drier installed in the garden.

SUMMING UP

The Corporate Complaints Manager advised Members that, in conclusion:

 In the view of Streetscene Services, Sections 24 and 27 of the Tree Policy had been properly applied.  The two separate Arborists’ reports stated that the ash tree was healthy and required no work.  The Council had undertaken some remedial action and minor works.  Mrs Mentz had been advised of the legal situation in relation to cutting back overhanging branches.  The crux of the matter was whether the ash tree was inappropriate to its surroundings.  The tree policy stated that trees would not be felled if they were deemed to be healthy.  Trees in the environment were part of living in a wooded area, as Mrs Mentz’ property was.  The committee had the decision to make as to whether the tree was inappropriately sited.  A precedent would not be set, whatever the outcome of this hearing, as each case would be judged on its merits.  However, the decision would be a consideration in future complaints on tree issues.

Mrs Mentz summed up by stating:

 That the Tree Policy stated that each case could be judged on its merits.  The evidence given was based facts that were not in dispute in that the tree would only get bigger, she and her family would get older and therefore it would be more difficult to clear up after the tree.  The ash tree was already difficult to control and deal with.  Her partner had recently retired due to ill-health, also making it more difficult to clear up.

CONCLUSION

The Chair thanked Mrs Mentz for her presentation to committee and for raising the issues she had with regards to this tree. The Chair confirmed that careful consideration had been given to the points she had made.

The Chair thanked Mrs Mentz and the officers for attending the meeting.

At this point, the Chair asked the complainant and the officers giving evidence to leave the room, to enable Members to consider the case. Mrs Mentz would receive written confirmation of the committee’s decision within seven days. Complaints and Appeals Committee 4 November 2010

DISCUSSION

Members discussed the presentations and evidence received. The following points were raised:

 The Chair confirmed that she had been on a site visit and seen the tree. There had been no discussion of the case with Mrs Mentz.  The tree trunk was two feet from the fence at Mrs Mentz’s house and it overhung the garden by a considerable amount and was very overbearing on the bungalow in question.  This was due to the trunk bending over and ending up only five feet from the house with the whole crown of the tree over her property.  Trees were important, however, the removal of the chestnut tree nearby had resulted in a great deal of growth in the ash tree.  The photographs indicated the size of the tree in relation to the property and the damage that was caused to the garage roof.  The Tree Policy was acceptable, but it had to be applied appropriately.  People were more important than trees and Mrs Mentz should not feel she has to leave her home to get away from the problems with the ash tree.  The tree was so intrusive that it impeded on her life, therefore it required action to be taken.  Developers built housing estates, but then planted the wrong trees in the wrong places, and often too close to properties.  As the tree belongs to the Council and is situated on Council land, the Council should take action to improve the situation. The Council would be responsible for any damage caused by the tree.  If the tree was cut off at the point it crossed the fence into Mrs Mentz’ garden, it would just leave a trunk, therefore, it could be more appropriate to remove the whole tree. Also, the stump could then become subject to coppicing, whereby new shoots would grow.  Mrs Mentz would be within her rights to have the tree trimmed back to the fence line, however, given the size of the tree, the cost would be considerable.

DECISION

The Committee agreed unanimously that Mrs Mentz’s complaint be upheld on the grounds that:

(a) The tree was of a size and species inappropriate to its surroundings (re. criteria 24 of the Tree Policy). (b) The tree was unique in that it had grown sideways and not upright and therefore impinged on her property. (c) It was of such a great size, being over 60 feet, in both its height and width of its crown, with the potential of another 25% growth.

However, it was noted that this was an exceptional case as the tree in question was unique in nature and in its position in relation to Mrs Mentz’ property.

ORDERED that the complaint by Mrs Mentz be upheld and the ash tree in question be removed in its totality.