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10-22 Victoria Street Bristol BS99 7UD
Tel: 0117 918 2000 Direct Tel: 0117 918 2196 Fax: 0117 918 2100
DX 7846 BRISTOL e-mail:
Our Ref: SRB - ZPH010-0425179 - Rachel Bolt
Your Ref: SP/1505/7YR
31 August 2005
F.A.O. David Edwards
Legal Services Manager
Rother District Council
Town Hall
Bexhill-on- Sea
TN39 3JX
By Fax: 01424 787879
Dear Sir
Damage to The Meadows, Cackle Street, Brede, Rye, E Sussex TN31 6DX
Our clients: Mr & Mrs R Gillam
Damage to Fletchers, Cackle Street, Brede, Rye, E Sussex TN31 6DX
Cogent Solicitors’ clients: Mr & Mrs Kardamarsh
As you will be aware:
1. Planning permission for removal of trees affecting each of the above premises was granted in this matter last month.
2. We have been provided with a copy of the Olan Trust’s letter to you dated 17 August 2005, challenging the permission granted and intimating judicial review.
3. You are due to discuss the Olan Trust’s approach at a meeting convened for Thursday 1September.
Whilst we do not consider there to be any formal need as such, for the purpose of balance we comment in response to the Olan Trust’s letter where we consider that this would be helpful as follows:
Issues contested
10A: Abuse of process
We do not accept that there was any such abuse of process.
The second TPO application for the site at Fletchers was substantially different to the first, sent 9 March 2004 in that it included a signed statement from Mr Kardamarsh dated 10 January 2005 which was his personal account of how the building moved with the seasons. The second application also quantified the level of repair costs if the tree remained or if it was removed.
The Gillam application of 5 April 2005 was the third application. This application was substantially different to that submitted in June 2004 as there were monitoring readings to March 2005 which continued to demonstrate cyclical movement which is clearly indicative of the damage caused by the tree in proximity to the property.
10B Fettered discretion & procedural impropriety
Clearly the TCPA 1990 and Trees Regulations 1999 provide that a Claimant is entitled to submit a s.203 claim for compensation in the event of either an application being refused or an Appeal dismissed.
Whilst it is not particularly a matter on which we are properly placed to comment we would just say that we entirely fail to see how commenting on procedurally available recourses can in any way amount to a pre judgement of the outcome and/or a fettering of the LPA’s discretion.
10C Improper considerations
In accordance with usual and accepted practice the underpinning repair costs projections were prepared by experienced Loss Adjusters acting on behalf of the respective Insurers.
The point that appears to be being made is that the costs submitted may have been inflated and should have been closely scrutinised. Firstly, we are satisfied that the LPA were fully entitled to rely on the information provided by reputable and experienced professionals, who are in turn accounting to their insurer clients in terms of the costs projections that they produce. Any expectation on the LPA to routinely break down and scrutinise the figures would, save where there are obvious concerns, be onerous and a drain on public resources. Secondly, even if it were the case that the figures were inflated, which they were not, we fail to see the relevance within the context of the Olan Trust’s challenge to consents that were based, as we understand it, on a wide range of carefully considered factors.
10D Failure to take into account relevant considerations
Given that it was not party to the LPA’s deliberations we fail to understand how the Olan Trust has arrived at its listed criticisms of failure to consider by the LPA. The points raised strike us as entirely speculative and subjective, and as far as we know, no evidence has been provided to support them. Certainly our understanding of the process is that it has been lengthy and detailed, with opportunities at the usual procedurally provided intervals for each party to submit representations.
Whilst in the absence of any particular example to support the Olan Trust’s criticisms we are unable to sensibly comment on the bulk of their criticisms we would respond briefly to two of the points as follows:
· We fail to see how views expressed in 1989 could be considered in any way pertinent 16 years later.
· OCA arranged for their senior Ecologist to assess the trees. No issues arose concerning protected species (with particular consideration given to bats). The relevant assessment report dated 4th August 2005 is attached to this letter.
10E Legitimate expectation
Insofar as this is a sustainable ground for judicial review/rescission, which we doubt it is, again, we would respond that this criticism is purely subjective, and that no explanation or underlying evidence has been provided in support.
12 Requested actions
Firstly, the grounds for judging an application to fell a preserved tree are set out in published Government Guidance. They do not include “ecological/landscape/heritage/socio cultural importance”.
Secondly the “grounds” cited, save for 12g, are again purely subjective and are all part of the background that is considered in the round by the LPA prior to consent being granted.
With regard to 12g the “ground” is vague and generalised – trees in the locality may contribute towards providing habitat but there is no persuasive evidence that either of these specific trees are bat roosts, as evidenced by the findings of the report previously referred to and attached to this letter.
In summary and by way of general comment, the LPA made its decisions based on the information provided by both parties at the procedurally stipulated opportunities, and we have not seen anything to suggest that this is in any way now properly open to challenge (either whilst the process was underway, and exposed to public consultation, or after the event as here).
For such a challenge to succeed now would provide an entirely unacceptable precedent. It would destroy the proper expectation that homeowners are entitled to rely on of certainty in such LPA granted consents and render the planning application process (to include the granting of a consent) essentially worthless. Such an outcome would accordingly be unacceptable and outside the interests of natural justice.
Finally, for the avoidance of any doubt this letter is written for and on behalf of both homeowners, both of whom are legally represented and both of whom strenuously oppose this approach from Olan Trust.
Yours faithfully
BEACHCROFT WANSBROUGHS – Solicitors for Mr & Mrs R Gillam
COGENT SOLICITORS – Solicitors for Mr & Mrs Kardamarsh
cc Olan Trust by fax – 08708 080 081
OCA Limited by fax – 01206 855751
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