No:

BH2022/03066

Ward:

Rottingdean Coastal Ward

App Type:

Removal or Variation of Condition

 

Address:

Land To The East Of The Vale Brighton       

 

Proposal:

Application to vary condition 4 of planning permission BH2015/01890 (allowed on appeal) to permit works to the trees which were listed as to be retained in the Arboricultural Impact Assessment and Tree Constraints Plan but which have subsequently been authorised under applications BH2021/01696 and BH2022/00435 to be felled and replaced by standard red maple trees and field maple trees. And vary condition 4 of planning permission BH2015/01890 (allowed on appeal) to allow six further trees to be felled and replaced with standard red maple trees and field maple trees.

 

Officer:

Steven Dover, tel:

Valid Date:

11.10.2022

 

Con Area:

N/A

Expiry Date: 

06.12.2022

 

Listed Building Grade:  N/A

EOT:

15.03.2023

Agent:

The Sussex Tree Company   2 Nursery Cottage   Titnore Way   Worthing   BN13 3RT              

Applicant:

Boran Investments   Field End   Greenways   Brighton   BN2 7BA              

 


1.         RECOMMENDATION

 

1.1       That the Committee has taken into consideration and agrees with the reasons for            the recommendation set out below and resolves to GRANT planning permission         subject to the following Conditions and Informatives:


            Conditions:

 

1.         The development hereby permitted shall be carried out in accordance with the      approved drawings listed below.

            Reason: For the avoidance of doubt and in the interests of proper planning.

 

Plan Type

Reference

Version

Date Received

Proposed Drawing

LLD783/ 01  

26 September 2022

Proposed Drawing

LLD783/ 02  

26 September 2022

Proposed Drawing

Devlopment site tree works  

1 December 2022

Proposed Drawing

Revised planting/tree installation scheme  

4 January 2023

Location and block plan

01B  

22 June 2015

Block Plan

02D  

22 June 2015

Proposed Drawing

04D  

22 June 2015

Proposed Drawing

05C  

22 June 2015

Proposed Drawing

06C  

22 June 2015

Proposed Drawing

07C  

22 June 2015

Proposed Drawing

08B  

22 June 2015

Proposed Drawing

09C  

22 June 2015

Proposed Drawing

12B  

22 June 2015

Report/Statement

Arboricultural Evidential Report  

4 January 2023

2.         Not used - development commenced

 

3.         The sample of materials details should be retained in accordance with the details             approved under application BH2021/02832.  

            Reason:  To ensure a satisfactory appearance to the development and to comply            with policies DM18 of Brighton & Hove City Plan Part 2 and CP12 of the Brighton         & Hove City Plan Part One.

 

4.         The proposed landscaping shall be implemented and retained in accordance with the details approved under BH2021/02832, except those trees which were listed as to be retained in the Arboricultural Impact Assessment and Tree Constraints Plan as approved under application BH2021/02832, but which have subsequently been felled or are due to be felled due to the risk of failure presented by Ash Dieback or the removal of significant sections of their roots, (numbered T15, T16, T17, T18, T19,T20, T21, T23, T24, T25, T26, T27, T28, T29, T30, T31, T32, T33, T34 T38, T36, and T37) as detailed in the Arboricultural Evidential Report produced by The Sussex Tree Company dated January 2023, shall be replaced by  eleven (11) Red Maple trees and eleven (11) Field Maple trees with a minimum nursery stock size of 20-25cm diameter. Full details of these replacement trees, including soil decompaction methods, tree pit details and maintenance proposal with a minimum of 3 year watering schedule shall be submitted to and approved in writing by the local planning authority prior to first occupation of any dwelling.

            Development shall be carried out in accordance with the approved details prior to            first occupation of any dwelling, or otherwise in accordance with a programme agreed with the local planning authority.

            Any trees or plants which, within a period of 5 years from the completion of the             development, die, are removed, become seriously damaged or diseased, shall be             replaced in the next planting season with others of similar size and species.

            Reason: To enhance the appearance of the development in the interest of the      visual amenities of the area and to comply with policies DM22 of Brighton & Hove           City Plan Part 2, and CP12 and CP13 of the Brighton & Hove City Plan Part One.

 

5.         The ecological mitigation strategy shall be implemented and retained in      accordance with the details approved under BH2021/02832.

            Reason: To enhance the biodiversity of the site and to comply with Policy CP10   of the Brighton & Hove City Plan Part One and DM37 of the Brighton & Hove City           Plan Part Two, as well as SPD11.

 

6.         Secure bicycle parking facilities shall be provided and retained in accordance with           the details approved under BH2021/02832.

            Reason: To ensure that satisfactory facilities for the parking of cycles are provided          and to encourage travel by means other than private motor vehicles and to comply      with Policy DM33 of the Brighton & Hove City Plan Part 2 and SPD14: Parking Standards.

 

7.         The outbuildings hereby approved shall only be used for purposes incidental to    their respective main dwellings. 

            Reason: To ensure the use of the development hereby permitted it appropriate     for its location and does not unduly impact on the amenity of neighbours, in          accordance with policy DM20 of Brighton & Hove City Plan Part 2.

 

8.         Notwithstanding the provisions of Article 3 of the Town and Country Planning       (General Permitted Development) Order 2015 (as amended) (or any order     revoking, re-enacting or modifying that Order), no extensions or alterations to the        dwellings hereby approved, which would otherwise be permitted by Schedule 2,    Part 1, Classes A, B, C, D and E of that Order, shall be carried out.

            Reason: The Local Planning Authority considers that further development could   cause detriment to the character of the area and for this reason would wish to      control any future development to comply with policies DM18 of Brighton & Hove          City Plan Part 2 and policies CP12 of the Brighton & Hove City Plan Part One.

 

            Informatives:

 

1.         In accordance with the National Planning Policy Framework and Policy SS1 of the Brighton & Hove City Plan Part One the approach to making a decision on this planning application has been to apply the presumption in favour of sustainable development.  The Local Planning Authority seeks to approve planning applications which are for sustainable development where possible.

 

 

2.         SITE LOCATION 

 

2.1       The application relates to a strip of land on the eastern side of The Vale. The site             is designated as a Nature Improvement Area (NIA) through City Plan Part 1 (CPP1) Policy CP10, and a Local Wildlife Site (LWS) through City Plan Part 2     (CPP2) Policy DM37. 

 

2.2       The site lies outside of the 'built up area boundary' but forms part of an Urban       Fringe site (CPP2 Policy H2 and CPP1 Policy SA4) identified as 'Site 42' in the            2015 and 2016 Urban Fringe Assessments. 

 

2.3       There is a group Tree Preservation Order (TPO) which protects all trees on the    site.

 

2.4       The site has planning permission for the erection of 6no. three-bed dwellings with             detached garages, and two detached single storey outbuildings. This was initially             refused, but allowed on appeal and has now been implemented (ref.           BH2015/01890 - see Relevant History below). 

 

2.5       The Vale is a private cul-de-sac with Ovingdean Road to its northern end and       Falmer Road to the southern end, and an access to Longhill School taken from      the road. The western side of the road, to the north of the school, consists of             detached dwellinghouses with long rear gardens, some of which extend up the        side of 'Long Hill'.

 

 

3.         RELEVANT HISTORY  

 

            BH2021/02832 - Application for Approval of Details reserved by conditions 3         (External Materials), 4 (Landscape Works), 5 (Ecological Mitigation Strategy) and     6 (Cycle Storage) of application BH2015/01890. Details Agreed 25/10/2021.

 

BH2015/01890 - Erection of 6no three bedroom dwellings (C3), detached garages and 2no detached single storey out buildings. Refused due to insufficient ecological survey information, and a lack of legal agreements securing affordable housing and transport contributions. Allowed on appeal on 8 November 2018.

 

Condition 4 attached to the permission stated:

 

No development shall take place until details of both hard and soft landscape

works, including hard-surfacing materials and boundary treatments, have been

submitted to and approved in writing by the local planning authority. Details

of soft landscape works shall include planting plans; written specifications

(including cultivation and other operations associated with plant and grass

establishment); schedule of plants, noting species, plant sizes and proposed

numbers/densities where appropriate; and details of the existing trees to be

retained, including their spread, girth and species. Development shall be

carried out in accordance with the approved details prior to first occupation of

any dwelling, or otherwise in accordance with a programme agreed with the

local planning authority. Any trees or plants which, within a period of 5 years

from the completion of the development, die, are removed, become seriously

damaged or diseased, shall be replaced in the next planting season with others

of similar size and species.

 

The appeal decision did not include any tree protection measures for those trees to be retained.

 

            Treeworks on Preserved Trees (Felling):

 

BH2022/00435 - T17/tag no0032, T19/tag no0033, T20/tag no0034, T21/tag no0035, T23/tag no0036, T24/tag no0037, T26/tag no0038, T30/tag no0039, T34/tag no0040, T38/tag no0041, T41/tag no0042, T43/tag no0043 - Fraxinus excelsior (Ash) - Fell to as near to ground level as is possible, (trees display signs of Hymenoscyphus fraxineus or Ash Dieback in upper crown). Replant with Acer rubrum (Red Maple). T20/tag no0034 - Fraxinus excelsior, (Ash) - Fell to as near to ground level as is possible, (tree displays signs of Hymenoscyphus fraxineus or Ash Dieback in upper crown and has significant basal cavity at root / stem junction). Replant with Acer rubrum, (Red Maple). Approved

 

BH2021/01696 - T22, Fraxinus excelsior, (Ash) - Fell to as near to ground level as is possible, (tree displays signs of Hymenoscyphus fraxineus or Ash Dieback in upper crown).

T24, Fraxinus excelsior, (Ash) - Fell to as near to ground level as is possible, (tree displays signs of Hymenoscyphus fraxineus or Ash Dieback in upper crown).

T32, Fraxinus excelsior, (Ash) - Fell to as near to ground level as is possible, (tree displays advanced signs of Hymenoscyphus fraxineus or Ash Dieback in crown and is heavily suppressed by adjacent trees). 

T41, Fraxinus excelsior, (Ash) - Fell to as near to ground level as is possible, (tree displays advanced signs of Hymenoscyphus fraxineus or Ash Dieback in crown).

T42, Fraxinus excelsior, (Ash) - Fell to as near to ground level as is possible, (tree displays signs of Hymenoscyphus fraxineus or Ash Dieback in upper crown). Approved

 

BH2020/03491 - The verges either side of the northern entrance to The Vale, and land to the east of The Vale - currently a paddock, which is also a permitted development site. 

Refusal - T4 - Poplar - the applicant has not provided corroborating evidence of defects, proximity to the property is insufficient justification. Removal of the canopy by 10m would have a detrimental impact on both tree health and visual amenity.

Refusal - T22, 24, 32, 41, 42, Ash - identified within the application, Section 15 Forestry Act 1967 prevents local authorities from considering applications to fell trees protected by a TPO when the felling activity would normally require a felling licence. A formal submission must be made to the Forestry Commission. 

 

 

4.         APPLICATION DESCRIPTION  

 

4.1       Planning permission is sought to vary condition 4 of planning permission   BH2015/01890 (allowed on appeal) to reflect that 16 trees, listed to be retained        in the Arboricultural Impact Assessment and Tree Constraints Plan of the original application, which have already been removed under tree works permissions   BH2022/00435 and BH2021/01696 and to approve a further 6 with replacement planting identified for the 22 trees.  The application as originally submitted was for       the removal of 23 trees in total, but one tree has not had sufficient evidence          provided to support its removal at this stage (Tree T22), as assessed by the       Councils Arboriculturalist.                         

   

4.2       Whilst 16 trees have already been removed the 6 identified to be removed are      protected by a blanket Tree Preservation Order (TPO) 

 

4.3       In total the variation of the condition applied involves the removal and         replacement of twenty two (22) trees on the site. Some of these trees (16 in total)    have already been approved for removal under the Treeworks on Preserved       Trees (Felling) applications detailed in the 'Relevant History' section above.        Condition 4 as it currently stands requires development to be carried out in         accordance with the approved details prior to first occupation of any dwelling, or   otherwise in accordance with a programme agreed with the local planning       authority. 

 

4.4       The treeworks permission allowed the developer to remove 16 diseased trees      from the development site. The removed trees were not considered to be in breach of condition, as these were granted under the treeworks permission, they      remained to be shown on approved plans. The six (6) new trees are proposed to be included for approval to be felled and have been subject to damage through       the construction process or felled prior to development. The lack of tree protection      measures during construction was considered to be a breach. Whilst the lack of             protection measures is the breach, an application for their removal through a        variation of condition has been sought. The application also consolidates the     measures required to mitigate the loss of all trees. 

 

4.5       The loss of trees owing to disease and the subsequent treeworks applications are           a material consideration in the determination of the application

 

4.6       The elements of the application covered under the Treeworks on Preserved Trees             (Felling) applications would not normally need to be included in a S73 application            as the works are already approved, but due to the quantum of felling which has         now been carried out, in conjunction with the new felling proposed, the LPA, as            advised by the County Arboriculturalist, are of the opinion that a comprehensive       replacement  and maintenance scheme which covers all trees felled or to be felled      is now required.

 

4.7       The variation of the condition would encompass all of the approved and proposed felling works in one application with amendments to the approved landscaping plan, and conditions to secure maintenance of the replacement trees. The amendment to condition 4, would include the obligations for replacement planting for all the felled trees (22 in total) with Red Maple Trees (11 in number) and Field Maple trees (11 in number). 

 

 

5.         REPRESENTATIONS  

 

            Twenty two (22) letters have been received objecting to the proposed        development on the following grounds:  

·           Adversely affects conservation area

·           Residential amenity harm

·           Effects on local wildlife from tree loss

·           Overdevelopment 

·           What legal measures will be taken against the developer for damage caused to the TPO protected trees

·           Poor design

·           Cynical ploy to remove healthy trees by the developer

·           Adverse impact on environment from loss of trees

·           Detrimental effect on property values

·           Investigation and prosecution of the developer should take place for damage to TPO trees

·           Appeal Inspector stated that the existing trees should remain

·           All the trees that have been removed already are not identified

·           Doubt the veracity of the degree of damage to the trees and need for removal that the agent has submitted.

·           Detrimental to the character of area

 

Councillor Fishleighhas commented on the application requesting the application to be determined by members at Planning Committee should officers be minded to approve. Although in making this request, Councillor Fishleigh did not advise of any reasons and the application is before committee due to the number of representations received.  A copy of this correspondence is attached to this report. 

 

 

6.         CONSULTATIONS   

 

            Arboriculturalist: Recommend approval subject to conditions.

 

            It is considered probable these trees will fail and therefore indefensible in a court of law, BHCC Arboriculture expect, irrespective of failure all will decline to the        point of removal post development.

 

            The inclusion of Acer Campestre along with the proposed Acer rubrum is   acceptable, BHCC Arboriculture recommend that due to the nature of the loss,   instant impact specimens are required.

 

            Tree pit dimensions, construction and materials to be submitted and approved      along with the applicant’s maintenance proposal, in particular their three year   watering schedule.

 

 

7.         MATERIAL CONSIDERATIONS   

 

7.1       In accordance with Section 38 (6) of the Planning and Compulsory Purchase Act 2004, this decision has been taken having regard to the policies and proposals in       the National Planning Policy Framework, the Development Plan, and all other          material planning considerations identified in the "Considerations and        Assessment" section of the report 

 

            The development plan is: 

·      Brighton & Hove City Plan Part One (adopted March 2016) 

·      Brighton & Hove Local Plan 2005 (retained policies March 2016); 

·      East Sussex, South Downs and Brighton & Hove Waste and   Minerals Plan (adopted February 2013); 

·      East Sussex, South Downs and Brighton & Hove Waste and Minerals Sites Plan (adopted February 2017);  

·      Shoreham Harbour Joint Area Action Plan (adopted October 2019); 

 

 

8.         RELEVANT POLICIES  

 

The National Planning Policy Framework (NPPF)  

 

Rottingdean Neighbourhood Plan   

The policies in Rottingdean Neighbourhood Plan carry limited weight at present but will gain weight as the Plan proceeds through its stages.

 

The draft Neighbourhood Plan (NP) was submitted to the Council in early 2023.   The draft NP reflects previous local community and stakeholder engagement undertaken across the Neighbourhood Area by the Parish Council including a            period of public consultation under Regulation 14 of the NP Regulations in 2021.    The Council published the draft Plan for pre-submission (Regulation 16)           consultation in February 2023. The next steps for the plan are for it to be            submitted for examination by an independent examiner. The NP examination is    likely to commence in the summer/autumn of 2023.

 

            The policies relevant to the present application are:

 

            S1:       Development Within and Beyond the Settlement Boundary; 

            GOS3: Wildlife and Biodiversity; 

            H1:       Balancing the Housing Mix 

            H2:       Design

 

Brighton & Hove City Plan Part One  

SA6    Sustainable Neighbourhoods

SS1    Presumption in Favour of Sustainable Development

            CP10  Biodiversity

            CP12  Urban design

 

Brighton & Hove City Plan Part Two  

            DM18 High quality design and places

DM20 Protection of Amenity

            DM22 Landscape Design and Trees

            DM37 Green Infrastructure and Nature Conservation

 

            Supplementary Planning Documents:  

SPD06 Trees and Development Sites

SPD11 Nature Conservation & Development

 

 

9.         CONSIDERATIONS & ASSESSMENT  

 

9.1       The main considerations in the determination of this application relate to the          principle of the development; the loss of the trees; and the impact of the tree     removal on the landscape, visual amenity and biodiversity.  

 

Principle of Development  

 

9.2       The principle of development has already been established through approval of    application BH2015/01890 at appeal dated 08/11/2018, which has now been    implemented by the applicant. The Planning Inspector considered the   development to be acceptable in all regards and secured various measures by           planning condition. 

 

9.3       It is noted that the City Plan Part Two has been formally adopted since the original             application was approved. The City Plan Part Two policies replace the now           superseded Local Plan and the policies hold full weight. There are no new           considerations raised by the adoption of CPP2 that would alter the conclusion that the development is acceptable in principle. 

 

            Loss of Trees  

 

9.4       As already noted, the removal of sixteen (16) of the protected trees that form part            of this application has already been approved under "Treeworks on Preserved          Trees (Felling)" applications BH2021/01696 and BH2022/00435. Six (6)         additional trees are proposed to be approved for felling and replacement under       this application by variation of condition 4 and seeks to encompass the previously         approved felling, unapproved felling and proposed felling under one application         with suitable mitigation measures.

 

9.5       Of these additional trees, T16, T26, T28, T31 and T33 have all suffered significant             damage to the rooting structures from the development work which the applicant has carried out onsite in relation to BH2015/01890. It is important to note that the          appeal decision did not include any measures to protect the trees during          construction works. T30 was felled prior to development commencing as it     was assessed as 'standing deadwood' by the applicant’s agent. No evidence of   T30 as standing deadwood has been submitted to the LPA or the felling    previously approved.

 

9.6       The submitted plans and evidence in respect of T16,T26,T28,T31 and T33 have been assessed by Council's Arboriculturist who agrees with their removal due to            the level of damage which has been caused to the tree roots, risk of failure in the         future and/or Ash Die Back.

 

9.7       The felled trees would be replaced with suitably sized Red Maple Trees (11 in      number) and Holm Oak/Holly Oak trees (11 in number), which the Arboriculturist      also agrees with, subject to the final details and a maintenance scheme being   agreed by condition. 

 

9.8       On this basis, the proposed removal and replacement of the trees is considered   acceptable, given their poor health. 

 

            Impact on Landscape and Visual Amenity  

 

9.9       The removal of trees from the site and the proposed removal is due to a     combination of Ash Die Back (16 Trees), Naturel Death (1 Tree) and damage           which has been caused by the applicant's development of the site (5 Trees). This       has caused a significant diminishment of the site's impact on biodiversity and    visual amenity, and on the landscape which formed part of the character and           appearance of The Vale. This is regrettable, but in planning terms, given that the             felling for diseased/dead trees and the damage to roots has already taken place, it cannot be mitigated other than through replacement planting. 

 

9.10    The proposed replacement trees, in conjunction with the previously approved             landscaping under BH2021/02832 will go some way to restore the biodiversity      and landscape/visual impacts in the short term, and the longer term as they grow        into more mature specimens. While there will be short term impacts as mature             specimens are replaced with newer planting, in the long term, the appearance of     the area and its biodiversity will be restored to a level agreed through the grant of           permission for the development of the site. On this basis the impact on the            landscape of the area, and visual amenity is considered acceptable, subject to             conditions to secure replacement planting and maintenance. 

 

            Other Matters  

9.11    The majority of objections to the proposed works have stated that the applicant    caused damage to trees without having first gained permission to fell them. They   state that permission should not be given to fell the trees as they are the subject    of TPOs, that doing so would undermine the protection given to TPOs, and    embolden others to carry out unauthorised works, which could lead to the failure       of protected trees. A number of objectors state that the trees should be retained,   and the applicant investigated and if applicable prosecuted. 

 

9.12    However, in planning terms, only the acceptability or otherwise of the tree removal          and replacement can be considered. In this case, the retention of the five (5)    identified trees (T16, T26, T28, T31 and T33) is not considered sustainable or     beneficial in the long term, given their poor health. Their removal and replacement   is considered the best course of action for delivering trees on the site. 

 

9.13    In this regard, it should be noted that support for the application does not indicate             support for damage to TPO trees or their unauthorised removal, both of which are             contrary to Tree Preservation Orders and planning policy. This application seeks only to consolidate and resolve the best course of action for restoring trees to the site, and the associated benefits this brings to the surrounding area. 

 

            Conclusion:  

 

9.14    The proposed development is considered to consolidate historic and proposed     felling works to trees which benefit from a tree preservation order, with       replacement planting which would ameliorate the loss, improving the landscape     of the site and area, visual amenity, and biodiversity. Whilst the loss of trees is     regrettable, it is considered that suitable mitigation would be secured. The             proposal would be compliant with Policies SA6, CP10 and CP12 of the City Plan             Part One and DM18, DM20, DM22 and DM37 of the City Plan Part Two. As such,            this application is recommended for approval.

 

 

10.       EQUALITIES   

 

10.1    None identified

 

 

11        CLIMATE CHANGE/BIODIVERSITY

 

11.1    The harm to biodiversity through the felling of 22 trees in total is to be offset by     the planting of 22 new trees.