An update of a previously obtained Barrister's Opinion is required. The previous Opinion which is in the attachments was provided in respect of the council discharging a planning condition for the drainage of the new development which clearly showed a service route to be taken from the site within the approval site boundary and across a neighbouring site which was rented to the main contractor with the consent of the owners of the neighbouring site. Several trees were in the path of the service route and these were protected under a TPO. The attached Opinion considers that the discharged planning condition trumps the TPO. The trees were subsequently felled on the strength of that Opinion. The council are now prosecuting the land owner for allowing the trees to be felled without consent. During the deliberations of this matter is has become apparent that the council also discharged a separate planning condition which was the Construction Management Plan (CMP). This included a substantial part regarding the same neighbouring site that the service run was taken across which was to be used as a "builder's yard" during the course of the construction of the approved housing development. It is clear that the neighbouring site could not be used used without some of the trees on the site being either felled due to them being physically in the way or damaged by traffic movement and storage of materials and containers within Root Protection Zones. There is no mention of the possible damage to the trees in the CMP and the council did not ask for protection measures. It is the belief of the land owner that the discharge of the CMP has a similar effect on the TPO as the discharge of the drainage condition. The new Opinion should review and confirm the original Opinion and then add confirmation that the discharge of the CMP also trumps the TPO. The attached documents are the Original Opinion, the CMP and the Drainage Drawing. Comprehensive further documentation will be provided to interested parties.
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