DEVELOPMENT MANAGEMENT COMMITTEE
Report by Development Management Manager
1 DESCRIPTION
Promotion of a Tree Preservation Order (TPO) at land north of Murieston Valley, Livingston.
2 DETAILS
Reference no. TPO No. 3 of Owner of site West parcel: Dr Karim Rehana 2013 Central and east parcel: T. Carson and W. Sneddon Applicant West Lothian Ward & local Livingston South Council members Lawrence Fitzpatrick Peter Johnston Danny Logue John Muir Case officer Sarah Collings Contact details Tel: 01506 282-429 Email: [email protected]
Reason for referral to Development Management Committee: The matter has been referred to committee after a request from a local member.
3 RECOMMENDATION
3.1 It is recommended that committee confirms Tree Preservation Order No. 3 of 2013, at Murieston Valley (North) which was made provisionally under delegated powers on 28 October 2013 and requires confirmation by 28 April 2014.
4 DESCRIPTION OF THE PROPOSAL AND PLANNING HISTORY
The Site
4.1 The proposal is for a 2.4 hectare Tree Preservation Order known as „No. 3 of 2013 Murieston Valley (North)‟. The site is located between Murieston Valley and the railway line to the north and extends east from the land adjacent to 8 Moriston Drive in the southwest to land adjacent to 78 Teviot Drive to the northeast. The maximum dimensions of the TPO site are 535m and 110m.
4.2 The site of the proposed TPO was surveyed as part of the council‟s Phase 1 Habitat Survey in 1993 prior to the construction of residential development along the Murieston Valley distributor road.
1
4.3 The promoted TPO contains trees of primarily two ages: older farmland trees and mature trees along the burn, as well as newer shelterbelt planting which acts as a screen to the rail corridor, and to Bellsquarry and Bankton to the northwest.
Promoted TPO
4.4 The council was already minded to prepare a TPO for the Murieston Valley North area before application 0020/P/13 referred to below was received. TPO Murieston Valley (North) No.1 of 2013 (which covers the same area of land as the current TPO) was made on 30 April 2013 but was revoked by the current order because there was an objection to the earlier order and that objection could not be considered by committee prior to the date the order lapsed. Provisional TPOs must be confirmed within six months of being made or, statutorily, they lapse.
4.5 A replacement order, Tree Preservation Order No. 3 of 2013, was therefore made and served on all interested parties in the week commencing 28 October 2013 before the first order had expired. It should be noted that a TPO does not create a general prohibition on tree felling, pruning and woodland management. The order makes it clear that it is the carrying out of such actions without the consent of the planning authority that is prohibited (see clause 3 of the TPO).
4.6 The area promoted for Tree Preservation Order No. 3 of 2013 (Murieston Valley North) acts as a buffer strip between residential areas off Murieston Valley and the elevated railway line. Tree cover predominates across the TPO although some of it is immature and below the British Standard for inclusion in tree surveys. Tree cover across the TPO is comprised of three main areas: a western area of recent shelterbelt planting of young mixed woodland including willow, poplar, rowan, oak, beech, dogwood, ash, birch, aspen and Scots Pine; a broader central area including a narrow shelter belt to the east of Moriston Drive, mature farmland trees (beech, some oak and ash) and self-seeded saplings which will in time reduce the area of open grassland east of Moriston Drive and adjacent Murieston Valley; and an eastern area of shelterbelt planting, including some mature trees associated with the former farmland and the burn, which comprises emerging woodland of mostly wetland species such as willow and birch.
4.7 A tree survey was undertaken of the western and eastern parts of the area in January 2013 as part of a planning application. The tree identification above is drawn from that report.
4.8 The promoted TPO is highly visible from nearby roads and residential areas, the railway line, and the neighbourhood centre to the north and thus makes a valuable contribution to the amenity and character of the area.
4.9 In terms of biodiversity, the woodland provides habitat for birds and other species and includes wetland areas, as well as acting as a green corridor.
4.10 There are several justifications for promoting Tree Preservation Order No. 3 of 2013 at Murieston Valley North: to ensure the long term protection and management of the woodland; to support the significant amenity and landscape character that the mature trees and emerging woodland provides for local residents and community; to support local biodiversity and nature conservation by ensuring that the connectivity of a green route is maintained without barriers; and to maintain informal recreational routes and access to green space.
2
Planning History
4.11 The land was assessed as not suitable for development and set aside as open space by Livingston Development Corporation. The 1987 Stage A report for the new town identifies areas of Existing Woodland and Proposed Woodland across the proposed TPO area. A „Greenway/Leisure Route‟ is indicated from the railway underpass at Bellsquarry in the west running parallel and south of the railway line through the TPO site, turning southeast towards Murieston Water. Structure planting was implemented approximately twenty years ago and these trees are now well established.
4.12 The land covered by the TPO is part of a larger area that was transferred to the Scottish Greenbelt Company Limited by Livingston Development Corporation with a burden on the land requiring it to be used and maintained as undeveloped greenbelt ground. This burden ceased to have effect following the abolition of feudal tenure in Scotland in 2004. The land was subsequently sold to the current owners.
4.13 The land to the north of 8-11 Moriston Drive and bounded by the railway corridor is designated in the West Lothian Local Plan (WLLP, 2009) as „land safeguarded for open space‟ under policy COM2. The remaining TPO is unallocated „white land‟ within the Livingston settlement boundary. There are nine confirmed TPOs in the Bellsquarry and Murieston neighbourhoods plotted on the West Lothian Local Plan proposals map indicating the significance of woodland and trees to the character of the area. The land was never intended for development in either the current West Lothian Local Plan or the now superseded Livingston Local Plan (LLP, 1996).
4.14 A planning application (0020/P/13) for planning permission in principle for the erection of a 0.5ha residential development was refused by the councils local review body in early 2013. The site comprised land to the north and east of the Moriston Drive residential area and is included in the current TPO area. Relevant to the promoted TPO, the proposal was refused as contrary to policies ENV 11 (woodlands and forestry), ENV14 (the protection of trees and tree preservation orders) and COM2 (open space) of the West Lothian Local Plan.
5 PLANNING POLICY ASSESSMENT
5.1 Scottish Planning Policy (SPP, 2010, paras. 146 - 148) addresses trees and woodland. The policy cites that Tree Preservation Orders „can be used to protect individual and groups of trees considered important for amenity or because of their cultural or historic interest.‟
Planning Circular 1: Tree Preservation Orders (2011) sets out the Scottish Government‟s policy and procedures for TPOs and trees in conservation areas. Confirmed TPOs require to be recorded in either the Register of Sasines or the Land Register.
5.2 The development plan comprises the approved Strategic Development Plan prepared by the Strategic Planning Authority for Edinburgh and South-East Scotland (SESplan SDP, June 2013) and the West Lothian Local Plan (WLLP, 2009). The following development planning policies apply to the promoted TPO at Murieston Valley North:
Plan Policy Assessment Conforms? SES- Policy 11 Requires Local Development Plans (LDPs) The proposed TPO is a plan Delivering to identify opportunities and contribute to the multi-functional green link SDP the Green development and extension of a strategic and ensures connectivity Network Green Network. into local and larger scale network. 3
WLL ENV 14 Presumes against development that would The trees and woodland are P Tree damage or destroy trees protected by TPOs, of local amenity and nature Preservation or which have particular local amenity or conservation value. Orders nature conservation value.
WLL COM2 Land For the part of the promoted TPO under An overlapping TPO would P safeguarded COM2 designation, proposals which result in reinforce the COM2 for open the loss of urban sports and recreation designation. space facilities, or formal and informal open space will be resisted. Proposals are assessed against four criteria: justification of development, importance of open space, disturbance and loss of trees, woodland, wildlife habitats and green corridors; and availability and suitability of alternative sites for compensation/replacement.
6 REPRESENTATIONS
6.1 The provisional order was subject to the requisite statutory publicity.
6.2 While there is no legal requirement for community councils to be consulted regarding TPOs, Murieston Community Council has made a representation in support of the proposed TPO.
6.3 Including the representation from the local community council, ten representations were received in support and two against the proposed TPO. These are summarised in the table below.
Comment/ Issue Response
In support
Support from local community Noted Supports local wildlife including deer, bats, Noted foxes and particularly birds. Deer use the area for safe passage to connect to other areas. Concern that loss of the woodland would result in birdlife and other local wildlife disappearing. Protection of wildlife and watching wildlife is important. Developing woodland and trees in their prime Noted add to local amenity and local people enjoy watching the trees grow over time. Area is used by individuals, families and Noted children for informal recreation, as outdoor space, for local walks and dog walking. Woodland screens the railway and noise from Noted passing trains. The green space contributes to the special Noted character of Murieston neighbourhood and has scenic value.
4
Against
Client‟s land is not covered with woodland. Site visits and photographs show that the central and east parcel of land referred to and registered as MID 129516 is well covered in emerging woodland as well as some mature trees. Client‟s land (MID 129516) does not form part The on-site burn is within the Murieston Water of riparian corridor along the Murieston Water. watershed. Client‟s land (MID 129516) has no evidence of While there are no made paths on the site there are regular use (informal or otherwise) by local informal paths, notably emanating from the access residents such as a network of trodden paths. gate at the central section off Murieston Valley.
There are no public rights of way or core paths This is not a planning reason against a TPO. across the site. The local plan does not identify the land as While the COM2 designation is restricted to the „land safeguarded for open space‟. western end of the proposed TPO, a COM2 designation is not a precursor to a TPO. The land is not allocated as community These points are immaterial to the confirmation of a woodland in the local plan nor is it an action in TPO. the council‟s Woodland Action Plan. The Order as drafted does not satisfy the All statutory procedural requirements for the regulatory requirements. creation of TPOs have been followed Legal Services have ensured that a valid final order has been prepared subject to its confirmation. The council should conduct a tree survey to There is no legal requirement for a tree survey to comply with procedure and to ensure the TPO be undertaken when making or confirming a TPO. is enforceable. However, it is noted that a tree survey of the western parcel of land (MID 129134) has been undertaken and that the council‟s Aboricultural Officer has reviewed the TPO site. A photographic survey has been conducted and it is likely that the council will undertake further survey work once the TPO is confirmed and as part of the technical work for Central Scotland Green Network. Amenity is not defined in the Act and thus The trees within the designated area enhance the questions the grounds for making the TPO. amenity of this part of Livingston. The Act states in section 160 “if it appears to a planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their district, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order.” The word has not been defined so the legal presumption is therefore that the word be given its plain and ordinary meaning. The Oxford English Dictionary defines amenity as „a useful or desirable feature of a place‟. Client is concerned that the TPO is being The council is minded to designate a TPO in the made in response to a recent application for area due to the need to protect the high standard residential development on the west parcel of of local amenity. land. The Order is too wide ranging and should be Given the large number of established and re-drafted to one that is specimen and species emerging trees and the 2.4ha (6.0 acre) size of the 5 specific. TPO a blanket order is most appropriate. Only mature trees which are in satisfactory TPOs are not limited to mature trees and can be health and condition should be included in the extended to woodland where appropriate Order. justification is given.
A plan for a compromise position was The proposed boundary, suggested by the presented at a meeting on 13/11/13 between landowner, is indeterminate and has no justification the agent, owner (central and east parcel, MID in terms of maintaining the integrity of the woodland 129516) and Planning Services which would area as described in the promoted TPO above. reduce the coverage afforded by the TPO north of the centre of the site.
7 CONSULTATIONS
7.1 This is a summary of the consultations received. The full documents are contained in the application file.
Consultee Objection? Comments Planning Response
Forestry Commission - Receipt of TPO acknowledged - Scotland but no response WLC Aboricultural No Several site visits have been Noted Officer made with planning officers and agrees with the extended blanket TPO.
8 ASSESSMENT
8.1 Without the creation of a TPO at Murieston Valley North there is concern that the area of land may come under increased development pressure which would adversely impact on the contribution the site makes to the local landscape setting. The TPO supports the broader development of multi-functional green corridors as is occurring in the Livingston South blue/green network improvement proposals which are underway in the community. Due to the significant size of the TPO it will form part of the larger pattern of the Central Scotland Green Network which is identified as an initiative in National Planning Framework 2.
8.2 The mixture of emerging woodland and mature trees are important to local landscape character and have a high level of visibility from road and rail corridors and local communities.
8.3 It will also reinforce local habitat creation and support biodiversity.
8.4 There is community support for the benefits provided by the proposed TPO including for informal recreation and green space.
9 CONCLUSION AND RECOMMENDATION
9.1 The promoted TPO is recommended for approval as there is considerable and significant justification for the TPO to be made on the grounds of long term protection and management, amenity and landscape character, local biodiversity and nature conservation value, and, informal recreation and access to green space.
9.2 The proposal to promote a TPO is supported by development plan policies.
6
10 ATTACHMENTS
Location plan Copy of Order Title plans for MID129516 and MID129134 Letters of Representaion
CHRIS NORMAN Development Management Manager Date: 12 February 2014
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9 in Proposed TPO: Murieston Valley (North), Livingston.
Reproduced by West Lothi a H permission of Ordnance Survey on behalf of HMSO. © Crown copyright and database right 2012. All rights reserved. Ordnance Survey Licence number 100037194. 1:2500 Peter existing are protection of Re I many keeping and providing Courier 15 I Murieston Dear 11 th do am birds years hope provide November writing Sir/Madam, Bennett wild to by local with and this a animals know we the Valley natural in my wild the have Order will West reference 2013 upmost or local located life lose seen in boarder mention. is Lothian these and Murieston approved the this support to next also local woods the between land Council. to the recent green through for develop the area future including this The railway residential providing space Tree Order. the generations Tree from Preservation Deer,
that Y1 line. ongoing Preservation an I an space have provides I open Badger, would ideal of Council lived and scrub local balance Order like such Rabbits the close Order residents. to into process local that / natural both by with what covers and to was railway commend to nature. this Foxes, beauty Without is protect advertised an now area line. area along Over an and now the such such This of attractive admired the in with land council for is areas consideration the time very approximately too to West the for in tree residential much I many have this both North Lothian line action in types seen and the of The ChiefSolicitor West LothianCouncil CivicCentre Howden South Road LIVINGSTON West Lothian EH546FF th07 November 2013
Dear SirI Madam Tree Preservation Order: t4urieston Valley
Please accept this letter as confirmationof my support of the Tree Preservation Order covering the land to the side and rear or MuriestonValley.
The reasons I would wish this area to be protected is mostly for the protection of the wildlife, also there any many people use this area for dog walking, and its an4 area where children play.
Please note that there are four adults livingat the above address and they would also liketo support the Tree Preservation Order. Their details are
Thomas Graham Scott MartinScott KevinScott I Yoursfaithfully 3 4Q/
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Carol). Scott F
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r r 8 November 2013. 13 The Chief Solicitor, / West Lothian Council, Civic Centre, Howden South Road, Livingston, EH54 5FF.
Dear Sir,
I write to give support to the proposed Tree Preservation Order in Murieston Valley (North).
The enclosed area is developing woodland alotigwith a number of trees in their prime. It has been a delight watching the woodland mature over the past decade and observe the increase in wildlife, particularly birds that this has allowed.
The area outlined along with the space between Moriston Drive and Ossian Drive provides safe passage for deer. We see lots of bats at dusk. The Tree Preservation Order, if passed, will safeguard these animals and encourage the arrival of others.
My children used the area to make. “dens” and played hide and seek and other games here. It was good for them to have this area on their doorstep for recreation rather than playing inside with electronic games.
The woodland also screens the railway and the noise that the trains produce has diminished greatly during the time I have lived here.
I recently retired and as part of this exercise looked at moving house — only to realise that where I live now suits me better than anywhere else I saw. Here I remain and hopefully so will the trees.
Yours faithfully,
John Ford -t5vYwll
The Chief Solicitor The West Lothian Council S, Civic Centre ( Howden South Road 11 Livingston NOV2W3 EH54 6FF
Dear Sir
RE: Tree Preservation Order, rear of Murieston Valley
I write to you with regards the above order that I have recently been informed of.
I fully support the preservation order being granted — this area is of great importance to local wildlife, provides an area for children to play in, for adults to walk in, and acts as a buffer for the nearby trainline.
In a world that is becoming increasingly concrete, green space is vitally important. It adds to our quality of life here, and I feel very strongly that this preservation order is of huge importance to myself and other residents here in Murieston.
Thank you for considering my views.
Yours sincerely
Laura McKay Resident, 4 Moriston Drive, Murieston, EH54 9HT
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Our Ref: RDK13023 Your ref:
24 th May 2013
Carol Johnston Chief Solicitor The West Lothian Council Civic Centre Howden Road South Livingston Email: EH54 6FF [email protected]
Dear Ms Johnston,
WEST LOTHIAN COUNCIL TREE PRESERVATION ORDER (NO. 1) 2013 (TPO) MURIESTON VALLEY (NORTH) LIVINGSTON
Houghton Planning is instructed by RK Property Ltd (Dr Rehana Karim) to object to the above TPO as drafted and in as much as it relates to land in their control. This land is identified on the attached Location Plan, which was submitted with their recent planning application, and which is currently before the Council’s Local Review Body for review of the officer’s decision to refuse planning permission (Application No. 0020/P/13).
RK Property Ltd is aware that a planning authority is at liberty to make a TPO if it appears to them to be expedient to do so in the interests of amenity and/or that the trees or groups of trees are of cultural or historical significance. Furthermore, they accept that there are trees on their land, as identified in the Tree Survey prepared on their behalf by Donald Roger for the purposes of their planning application (copy attached), that are worthy of protection. However, in this case is it considered that the Order is too wide ranging by seeking to protect all trees of whatever species and whatever size. Instead, it is suggested that the Council should re-draft the Order and issue one that is specimen and species specific. This would achieve the purpose of protecting those trees that have amenity importance without also taking in those that should be felled, are diseased, or are of little amenity or landscape value.
Reference to the Tree Survey will show that the land in the ownership of RK Property Ltd supports a population of scattered mature trees. These are in variable condition and include a proportion that are clearly in poor and declining health and display a range of serious defects and problems. These trees have limited life expectancy and would normally be removed in the course of normal management operations for reasons of safety and good tree husbandry. It is inappropriate to include these in the Order and, as such, they should be excluded. Only mature trees which are in satisfactory health and condition should be specifically identified and included in the Order and these are clearly identified in the Tree Survey.
It will also be noted that large parts of the site are covered in relatively young and small regenerating tree and scrub growth. These have negligible landscape and amenity value and, as such, should also be excluded from the TPO.
Houghton Planning Ltd 102 High Street, Dunblane, Stirling, FK15 0ER Company No. SC433297 Tel: 01786 825575
For the above reasons it is respectfully requested that the Order be re-drafted and that a full and proper assessment of the tree cover on the site carried out by the Council to provide a more detailed, specific and considered TPO plan and First Schedule.
It is also noted that the TPO plan does not include land immediately north of Murieston Valley/Teviot Drive, which is understood to be in the ownership of the Council and has been promoted for development as part of the West Lothian Local Development consultation process. RK Property Ltd would request that the Council explain why areas that it owns, and which also contain mature trees along the line of the railway, are not included in the TPO.
RK Property Ltd look forward to receiving a response from the Council to the above matters prior to the Order being confirmed and are willing to discuss these matters further at a meeting, if that would help. Equally, RK Property Ltd would be willing to arrange a site meeting between Donald Roger and a representative of the Council at which his thoughts on individual trees can be expressed, including those trees that should be immediately felled and those that have a limited live expectancy, are subject to decline and disease, or are of limited amenity value.
It will hopefully be appreciated that the aim of RK Property Ltd is not to prevent the Council from making a TPO, but only that this should be of a form, and of an area, that is appropriate and understands the reality of what is on site and worthy of protection.
We look forward to hearing from you in due course, but in the meantime please contact Paul Houghton at [email protected], or call him on 01786 825575 or 07780 117708, if you require any further information or clarification.
Yours sincerely
Houghton Planning
Houghton Planning Ltd 102 High Street, Dunblane, Stirling, FK15 0ER Company No. SC433297 Tel: 01786 825575
Euan FS Pearson Pearson Planning, Carol Johnston Chartered Surveyors Chief Solicitor PO Box 28606 Legal Services Edinburgh West Lothian Council EH4 9BQ Civic Centre Howden South Road Telephone: 0131 336 1974 Livingston 07879Mobile 421: 19307879 421193 EH54 6FF
Your ref: JMM/PLA-012028 1st November 2013 Our ref: EFP/Carson
Dear Carol
Section 160 of Town & Country Planning (Scotland) Act, as amended. Proposed Tree Preservation Order (No.3) 2013 Murieston Valley (North), Livingston EH54 9GZ
West Lothian Council has notified my client, TH Carson, under Regulation 4(1[d]) of the above Order. This Order replaced the previous No.1 Order, revoked on October 29th.
TH Carson objects to the Order, as proposed. The Council must consider this representation before deciding to confirm (or not) the Order.
My client owns the land between the public road verge and the boundary fence of adjacent railway land, on the north side of Murieston Valley. The western and eastern boundaries are directly opposite the houses at Nos. 38 & 76.
My client’s land (“the Carson Land”) is not covered with woodland. There are individual trees (some in small groups) spread across an area of grassland, populated with shrubs and bushes. There is a burn (opposite No.1 Rothes Drive) with an open culvert. The topography varies from west to east.
The Carson Land doesn’t form part of the riparian corridor along the Murieston Water. That is a heavily wooded area.
The Carson Land is fully enclosed by fencing, and there is no evidence of regular use (informal or otherwise) by local residents. Id Est, no network of trodden paths or littering etc.
There are no public rights of access across the Carson Land. There are no Core Paths or ‘other paths’ identified in the West Lothian Draft Core Paths Plan (adopted 17th October 2013).
The West Lothian Local Plan does not identify the Carson Land (or any other land associated with the Order) as Land Safeguarded for Open Space.
Policy COM2 resists the loss of open space, trees and woodland. It is considered that had the Council wished to protect the trees on the Carson Land, it should have done so through the local plan process, allowing public consultation, and open consideration using the inquiry procedures. Indeed, as the Council has commenced preparation of the Local Development Plan, this creates an opportunity to have the Carson land redesignated.
Similarly it is not allocated as Community Woodland. If the Council considers that the Carson Land is local amenity woodland then it is for the Council to redesignate it in the upcoming Local Development Plan, and have its suggestion properly tested through open examination.
All trees are given protection by policy ENV11. That presumes against development affecting woodland & trees. Policy ENV14 states that the Council will only promote a TPO where “trees of particular merit” are “under threat”. My client sees no evidence from the Council that there are any such trees in situ, or that trees have been damaged/removed.
The Council’s Woodland Action Plan has the objective of expanding the woodland resource. However, it is not an “Action” in the Plan to protect/expand/increase woodland cover in Murieston. It is an Action to encourage private landowners to manage their woodlands. The Council has not approached my client about management. This approach should be adopted before imposition of a Tree Preservation Order.
The felling of trees greater than 70mm (7cm) diameter, totalling more than 5m3 timber requires a licence from the Forestry Commission. Protection has been given to trees since the 1967 Forestry Act.
My client considers that the Order, as drafted, is not sufficient to satisfy regulatory requirements. In its current form, it is open to legal challenge.
The Order includes a map of scale 1:2,500 (“the Order Map”). Regulation 3(1) requires the map to define “the position” of trees, groups of trees or woodlands. The Order Map simply shows a red line drawn around an expanse of land on the north side of the public road. Anyone who visits the Carson Land will clearly see that there is not a blanket of forest/woodland. The Order Map must identify where trees (individuals, groups etc) stand, in relation to unpopulated land.
Circular 1/2011 includes a Model TPO. That includes a template for Schedule 1. The template stipulates that individual trees, groups of trees, and woodland must be listed. The purpose of the Order Map is to identify the position trees, groups and woodland listed in the Schedule 1. The Schedule utilises a colouring system (green, black and red) for the Order Map.
This Order doesn’t follow the detailing required by the Model Schedule 1. A red line has simply been drawn around a large area of land on the north side of the public road. There has been no attempt made to identify how many trees are affected by the Order, or indeed catalogue the species. On making telephonic enquiries of Development Services, it was confirmed that the Council has STILL not undertaken a tree survey of the land subject to the Order.
The Council should conduct a tree survey, and amend both Schedule 1 and the Order Map. If for no other reason, I suggest that it makes the Order unenforceable. If the Council has no inventory of trees in the Order, then it will not be able to detect that a contravention of the Order has taken place (Section 167). Consequently, it will not be able to enforce replacement of any tree (Section 168).
The Council is already in receipt of an independent Tree Survey, for the area (owned by RK Property Ltd) west of the Carson Land. That identified the position of individual trees and groups of trees. There is a schedule of species included. The Council should be utilising that information to produce its own detailed Order Map and Schedule 1. I attach a copy of the Tree Survey.
Regulation 3(2) requires the Order Map to be of a scale sufficient to give a clear indication of the position of the trees etc. The Council is using a scale of 1:2,500. This makes it virtually impossible to mark individual trees or measure accurately. The Council requires applications for planning permission to be accompanied by block plans at a scale of 1:500. My client sees no practical reason why the Order cannot be accompanied by this smaller scale of map.
Section 160(1A) of the Act allows a Tree Preservation Order to be made in the “interests of amenity”. However, amenity is not defined in the Act.
Circular 1/2011 states that the Council must provide the grounds for making the TPO. The Council has made this Order on the basis that:
“The Site forms an extension to an existing area of woodland and contains a number of mature trees. Removal of the trees would be detrimental to the amenity of the area. The trees are of conservation value and contribute to the appearance and quality of the environment in the area to a significant extent. Retention of the trees is required to protect the setting of the area.”
This statement is generic, and purposely ambiguous. It could be applied to any area where the Council wishes to propose Order. It is not clearly from this why a TPO is necessary.
Notwithstanding this, in response, my client points out the following facts:
there is no woodland to the north: (railway), south (housing) or east (open space) of the Site. There are trees on land behind Ossian Drive but these cannot be described a forming woodland, nor are they protected by TPO;
simple inspection confirms the existence of a number of mature trees at the back of the Site, along the railway. The Council has not surveyed any of the trees. Therefore, the condition of the mature trees (or any other specimen) is unknown. Some may be diseased or dying;
the (long) grasses, shrubbery, and trees with diameter of 75mm, also contribute to the setting of the area. These can be removed without consent of West Lothian Council;
the trees, fundamentally, screen the railway, improving the visual amenity of people living in 20 houses on Murieston Valley. The trees are mostly deciduous and shed leaves in Autumn, leaving the railway & trains visible for much of the year;
the Council hasn’t undertaken a Character Appraisal of Murieston. Without this the extent to which any trees make a contribution to the appearance and quality, cannot be quantified.
My client is concerned that the Council is making the Order in response to a recent application for planning permission in principle (ref: 0020/P/13) by RK Property Ltd. In February the Development Management Manager refused permission for residential development on the western part of the land affected by the Order. RK Property’s architect suggested that 6 houses could be built (see drawing attached). Application documentation included a Tree Survey.
That application is currently the subject of a notice of review and being heard by the Local Review Body. The request was continued when the LRB met. The proposal will be heard again on 27th November 2013. It appears to my client that this Order has been made as a spoiling tactic. The Council has made NO attempt to discuss my client’s objection to the previous No.1 Order.
In conclusion, my client considers that the Order is unnecessary, considering the protection given to trees by development plan policy and the Forestry Acts. There is also the opportunity to protect the land through the emerging Local Development Plan.
Setting this aside, it is inappropriate to simply draw a red line around the Carson Land, and that of the neighbouring owner RK Property. There is not a single woodland in situ but a number of individual trees and tree groups. Therefore, it is recommended that the Council conducts its own tree survey to inform a modified Order. Donald Rodger Associates has already produced a survey of the land owned by RK Property Ltd.
The Order should include a Map(s) at a smaller scale, showing the position of these trees & groups, cross-referenced to a detailed Schedule 1.
My client considers that the Order must not be confirmed until this action has been carried out.
It is understood that Cllr Johnston will require any decision on confirmation/non-confirmation of the Order by Development Management Committee. My client welcomes the opportunity to address elected members at that time. However, before that the Council should meet with my client to discuss modifications.
Please acknowledge receipt.
Yours sincerely
Euan FS Pearson MRTPI MRICS enc. MURIESTON COMMUNITY COUNCIL
Chair: Arthur Marris Secretary: Davidson McQuarrie, Tel: E-mail: Web: c
Carol Johnston Chief Solicitor West Lothian Council West Lothian Civic Centre Howden Road South Livingston
Your Ref. 0020/P/13
26th November 2013
Dear Ms Johnston,
Outline Planning Application for Erection of 6 houses on Land at Murieston Valley, beside Moriston Drive
On behalf of Murieston Community Council, I am writing to express our support for the TPO which has been applied by West Lothian Council in respect of this site.
It is clear from our engagement with the neighbourhood that this decision to create the TPO has the unequivocal support of the local community.
Yours sincerely,
Davidson McQuarrie Secretary, Murieston Community Council