BTF Further Comments – 01 February 2025

2

The report provided fails to record items c - the height ranges provided are too wide, c - if the DBH Range (m) field refers to the accuracy of the DBH measurement, e - the four cardinal points are not recorded, f, g, h – no general observations are made, only management recommendations, i and j.

The measurement of the trees stem diameters (called DBH) is over 16 months out of date. They so should not be preferred over our more recent measurements taken on 22 January 2024. These measurements are important as they are the key parameter by which the habitat area of the trees is calculated for the purposes of the obligatory biodiversity net gain calculation

This application should not be allowed to proceed further until these deficiencies have been addressed.

BTF Further Comments – 01 February 2025

3

The removal of TPO fastigiate Pedunculate oak TPO 1174-T9

Sometime after June 2024, a fastigiate Pedunculate oak (Quercus robur) was removed, we believe, on behalf of those responsible for the management of the site.

The tree is protected by Tree preservation Order 1174 and is identified as tree T9 in the protected group.

To the best of our knowledge no application was made for permission to remove this tree pursuant to either Articles 13 or 14 (2) of the Town and Country Planning (Tree Preservation)(England) Regulations 2012.2

Section 206 of the Town and Country Planning Act 1990 states that: 'it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can.'3

The tree has not been replanted and there are no proposals in planning application 25/10080/F (for permission to undertake public realm improvement works) to do so.

As a result, we believe that there is a breach of the requirements of both the Act and the Regulations referred to above in that:

1. No application was made for permission to remove the tree. 2. The tree has not been replanted as required under the Town and Country Planning Act

1990.

We have asked Planning Enforcement to investigate.

2 https://www.legislation.gov.uk/uksi/2012/605/contents. 3 https://www.legislation.gov.uk/ukpga/1990/8/section/206.

BTF Comments – 23 January 2025

2

Tree

No TPO Ref. Species

Stem

Diameter

(cm)

Observations RPA (m²)

T5 TPO-1174-T5 Quercus robur 23 Electrical cabling ties

too tight. 24

T6 TPO-1174-T6 Acer

saccharinum 43

Exposed roots. Fairy

lights left in the

branches. Electrical

fittings attached to

tree stem.

85

T7 TPO-1174-T7 Quercus robur 26 Electrical cabling

trapped in tree stem. 32

T8 TPO-1174-T8 Quercus robur 26 Electrical cabling

trapped in tree stem. 30

T9 TPO-1174-T9 Quercus robur 18

The tree has been

removed. Estimate a

stem diameter of 18

cm.

8

(Structur

al Root

Zone)

T10 TPO-1174-T10 Acer

platanoides 78

Electrical cabling

screwed into tree stem 275

Figure 1: Key arboricultural information

These photographs show the condition of the trees in situ.

The demolition plan3 shows proposed demolition works within the root zones of a number of

trees, yet no Arboricultural Method Statement has been produced to discuss how the trees will

be protected during the demolition and construction phases.

In the course of our inspection, we noted the following:

• All the trees are protected by Tree Preservation Order TPO-1174. The applicant makes no

mention of this and a copy of the Order has not been published.

• Tree T9 has been removed. Examination of Google Street View shows that the tree was

present in June 2024 and that it seems to be dead or dying. It appears that no application

was made to remove the tree despite its TPO status, though this was perhaps because, being

dead, it was exempt so no application was required.

3 DEMOLITION_PLAN-3837845.

BTF Comments – 23 January 2025

3

• Tree T4, a mature Norway Maple, is a veteran or is in the process of becoming so. It is

relatively old and large for its species with deadwood in the crown, decay holes & cavities

and epiphytes growing in its trunk, as these photographs attest. It is possible that the other

Norway Maple, T10, is also becoming a veteran. Veteran trees are irreplaceable habitat

under the December 2024 NPPF 193 (c).4 As such, the BNG requirement is disapplied for

these habitats (see our discussion below).

• Most of the trees have electrical cabling and junction boxes attached to them, either with

screws inserted into the stem or with zip ties that are constraining growth. In two of the

fastigiate oak the bark has grown over the cabling. In many cases lights have been left

hanging in branches, even though they appear no longer to be working.

• The roots of T1, the Plane and T6, a Honey Maple, are exposed. The remaining fastigiate

oaks are beginning to encroach on their pit covers.

2. The Urban Individual trees habitat calculation

The applicant has produced biodiversity net gain (BNG) evidence which shows a purported net

gain of 23.80%, with all the post-development mitigation taking place on site.

The applicant’s baseline Urban Individual trees habitat comprises nine trees, made up of:

• 0.1172 ha of Moderate condition trees (2 small, 2 medium, 1 very large) worth 0.94

Habitat Units (HUs) and

• 0.0285 ha of Poor condition trees (3 small, 1 medium) worth 0.11 HUs.

Which trees have which condition is not stated. This totals 1.05 HUs - over 88% of the value of

the baseline habitats.

It appears that the lost fastigiate oak (T9) has been omitted, even though it was only removed

after June 2024 and so must be taken into account under the terms of Paragraph 6 of Schedule

7A of the Town and Country Planning Act 1990, which states:

If—

(a) a person carries on activities on land on or after 30 January 2020 otherwise than in

accordance with—

(i) planning permission, or

(ii) any other permission of a kind specified by the Secretary of State by regulations, and

(b) as a result of the activities the biodiversity value of the onsite habitat referred to in

paragraph 5(1) is lower on the relevant date than it would otherwise have been,

the pre-development biodiversity value of the onsite habitat is to be taken to be its

biodiversity value immediately before the carrying on of the activities.

If the TPO tree was removed ‘in accordance with a planning permission’, then it must still be

taken into account as the tree was removed after 25 August 2023 (Paragraph 6A of Schedule 7A

4 https://assets.publishing.service.gov.uk/media/675abd214cbda57cacd3476e/NPPF-December-2024.pdf

BTF Comments – 23 January 2025

4

of the Town and Country Planning Act 1990).

On the basis of our measurement of the stem diameters of the onsite trees, we calculate the

baseline Urban Individual trees habitat as set out in Figure 2 below:

Figure 2: Urban Individual trees habitat calculation

We have also undertaken a tree condition assessment of this habitat on a tree-by-tree basis:

Figure 3: Urban Individual trees habitat condition assessment

On this basis, we calculate that the baseline Urban Individual trees habitat comprises 0.1905

ha (0.1864 ha in Moderate condition and 0.0041 ha in Poor condition) worth 1.64 HUs, of which

0.0041 ha worth 0.03 HUs has been lost when tree T9 was removed.

BTF Comments – 23 January 2025

5

However, if tree T4, a large size Urban Individual trees habitat comprising 0.0366 ha, is a

veteran and so irreplaceable habitat, this habitat is only worth 1.24 HUs. (We discuss the impact

of this in the Biodiversity Net Gain section below.)

The Statutory Metric guide says of irreplaceable habitats:

Irreplaceable habitats (as provided for in BNG regulations) are technically very difficult

to recreate once destroyed (or recreation would take a significant amount of time). As

such, the BNG requirement is disapplied for these habitats. Any losses or deterioration

impacts to irreplaceable habitats cannot be calculated by the biodiversity metric tool

and they are removed from the baseline.

Impacts to on-site and off-site irreplaceable habitats should be avoided in line with

planning policy. Irreplaceable habitats require consideration outside of biodiversity net

gain, which must comply with up-to-date policy, legislation and regulations.5

The plan to install hard surface beneath most of T4 is likely to result in in the loss or

deterioration of this habitat and is not permitted. A bespoke solution will be required to address

this, if possible.

Proposed enhancement

The applicant proposes to enhance 0.927 ha of moderate condition Urban Individual trees

habitat (1 very large tree, 1 medium tree) by improving its condition to Good (Passes 5 or 6 of

the criteria in Figure 3 above) over the next 16 years. If, as we assume, the very large tree is

the T1, the Plane, it is hard to see how this could be possible. The only criteria that could be

used to achieve this condition are criteria E and F, both of which would need to be met. It is

unlikely that criterion E would be allowed, given the setting and the proposed landscaping,

which means that the tree will not have ‘more than 20% of the tree canopy area oversailing

vegetation beneath’ (criterion F).

The Medium condition tree to be enhanced has not been identified, but the same considerations

will apply for all these trees, given that only one tree, T6, achieved a score of 4 and criterion

E would probably not be allowed given the setting.

We have discounted any habitat enhancement in our calculations.

Habitat creation

The applicant proposes planting eight Small-sized Urban Individual trees in addition to those

being retained. These will achieve Moderate condition after 27 years and become worth 0.10

HUs.

There are no proposals to replace the lost fastigiate oak, T9, as part of this.

The applicant does not say whether some or all of these trees will be planted in specially

5

https://assets.publishing.service.gov.uk/media/669e45fba3c2a28abb50d426/The_Statutory_Biodiversity_Metric_-_User_Guide__23.07.24_.pdf - page 20.

BTF Comments – 23 January 2025

6

designed tree pits or in planters. However, the proposed Sections CC-DD drawing6 suggests that

the new trees will be sealed off from the ground and so will be, in effect, in planters. In this

case, these trees cannot be treated as Urban Individual trees habitat.

Trees placed in planters must be classified as Urban Ground level planters habitat - a low

distinctiveness habitat with no set condition assessment. On the assumption that each of the

eight trees proposed is placed in a planter which covers an area of, say, 2 square metres, this

would have a habitat area of 0.0016 ha and be worth 0.0031 HUs. This too will affect the

calculation of net gain.

Strategic significance

With the publication of the LNRS last November, all baseline habitats must be assigned low

strategic significance, whether or not the habitat is given special status – as trees are - in the

Local Plan.

Biodiversity net gain

On the basis of the above, a number of biodiversity net gain outcomes are possible:

a) Tree T4 is irreplaceable habitat and the trees created are Urban Individual trees habitat.

Net gain is 3.03%.

b) Tree T4 is irreplaceable habitat and the trees created are all Urban Ground level planters

habitat. Net gain is -3.97%.

c) Tree T4 is not irreplaceable habitat and the trees created are Urban Individual trees habitat.

Net gain is 2.35%.

d) Tree T4 is not irreplaceable habitat and the trees created are all Urban Ground level planters

habitat. Net gain is -3.07%.

In each case, net gain is less than the minimum 10% target required by Schedule 7A of the Town

and Country Planning Act 1990.

The proposed post-development management regime

The post-development management regime at Section E7 deals only with tree replacement,

merely requiring failed trees to be replaced. Given that this Urban Individual trees habitat will

not reach its time-to-target condition for 27 years from the date the habitat is created and the

trees will need to be subject to a regular management regime during at least that time, this is

inadequate.

An arboriculturist should be appointed with responsibility to monitor the trees and advise on

any remedial work needed (which will require LPA approval given the TPO status of the trees)

on a regular cycle.

All this needs to be incorporated into the Biodiversity Gain Plan and the Habitat Monitoring and

Management Plan to be enforceable under a section 106 agreement, given the substantial

6 25_10080_F-PROPOSED_SECTIONS_CC-DD-3837853 7 BIODIVERSITY_NET_GAIN_ASSESSMENT-3837868 – Section 3

BTF Comments – 23 January 2025

7

biodiversity net gain being established.