Appeal 6008327

The appeal is dismissed.

In its decision notice, the Council altered the description of development from that provided in the application form. The appellant confirms this was not agreed to and I have therefore determined the appeal on how it was originally described. This is shown in the banner heading above.

The Council refused the application partly on the grounds that the proposed extensions and alterations would be likely to result in pressures to prune or fell a protected lime tree. The appellant has shared a recent appeal decision1 at this site for a substantial amount of allowed works to this tree. It is acknowledged that the Council has not had an opportunity to comment on this, though it will be aware of it. The decision remains a matter of fact, and I have taken it into account in my

The main issue is whether the proposed development would preserve or enhance the character or appearance of the Lincombes Conservation Area (CA), with particular regard to protected trees.

The appeal site is located within the CA where there is a statutory duty to pay special regard to the desirability of preserving or enhancing the character or appearance of the conservation area; and where great weight should be given to the asset’s conservation. The CA is widespread and the steep part of it within which the appeal site is located is characterised by its properties set in large spacious grounds and networks of stone walls. These grounds provide a rich variety of trees that make an important contribution to the significance of the CA. 1 APP/TPO/X1165/10617

Yew Tree - There are concerns that the proposed soakaway may harmfully affect the roots of this tree. It is well manicured and positioned adjacent to a characterful path where views of it are plentiful. It forms part of an established cluster of trees and is recognised by its inclusion in a Tree Preservation Order . The appellant’s tree survey notes that it is in a good condition and likely to survive for many years. It also categorises the tree as a particularly good example of its species and I find no reason to disagree.

It goes on to add that root protection areas (RPA) are considered to be sacrosanct, and no construction or storage should be undertaken in such areas without approval of a qualified Arboriculturist. In that respect, the justification for a reduced RPA is limited to it having a regularly maintained, reduced domed crown. The report fails to explain with any clarity what the RPA ought to amount to or how its reduced size has been calculated. Furthermore, the assessment has been based on visual observation only, rather than any detailed ground investigation. This somewhat reduces the reliance that can be placed on its assumptions.

The appeal site is constrained in its topography which limits the available space for the size of soakaway shown on the plans. In these circumstances, even if indicative, I cannot be certain that the required soakaway could be achieved without harmfully encroaching onto the roots of the yew tree. Within that context, the use of planning conditions would not be reasonable as a logical and agreed methodology would be necessary to ensure the tree would remain protected in the immediate and longer term. Neither would be appropriate to condition its replacement should it succumb to the effects of the proposed development.

Lime Tree - The evidence indicates this tree would have made a positive contribution to the CA. Relevant to this, the previous inspector concluded that its problematic relationship with the stone wall outweighed the harm to the CA, noting the allowed works would effectively lead to its demise. At the time of my visit, the presence of such a tree was not obvious, though I did observe a large section of stone wall had collapsed. [name] been otherwise minded to allow the appeal, it is possible that an appropriately located species of tree with roots that may not damage the wall could be secured using a planning condition. This would provide some enhancement to the CA. The appropriateness of such a condition here differs from the scenario with the yew tree, as it is concerned with an existing positive quality of the CA; that being the wall, rather than a proposed constraint.

Drawing these matters together, while a replacement tree could provide some visual enhancement to the CA, this would not be outweighed by the possible harm to the yew.

The proposal would cause less than substantial harm to the CA’s significance as a designated heritage asset due to the relatively small-scale of the development proposed. Paragraph 215 of the Framework explains that in such circumstances, it is necessary to balance the harm against the public benefits of the proposed development. The proposal would generate employment during the construction phase and add to the quality of living accommodation for the appellant. Even if I were to consider the latter a public benefit, this would not be sufficient to outweigh the harm to the designated heritage asset.

For the reasons given, the proposal would fail to preserve or enhance the character or appearance of the CA, with particular regard to protected trees. There would consequently be conflict with policies SS10 and C4 of the Torbay Local Plan, which aim, in part, to avoid harm to protected trees and the natural setting of designated heritage assets.

The Council cites conflict with Policy TH10 of the Torquay Neighbourhood Plan, though this relates to alterations to listed buildings. It has consequently not been shown to be relevant to this proposal.

I have had regard to the comments made in respect of the appellant’s understanding of tree protection, though this has no bearing on my decision which is based on the planning merits of the proposal.

For the reasons given above the appeal should be dismissed.