To take you scenario Steve I would suggest that A has a case of
maladministration since - as you say ' A has not commented, being satisfied
that the trees he wanted protected were on the order.' Surely the TO knew
this and has either deliberately or accidentally left them out. I think the
scenario you have given shows the Council to be a bit cack-handed.
-----Original Message-----
From: Stephen.Shields@xxxxxxxxxxx.gov.uk
[mailto:Stephen.Shields@xxxxxxxxxxx.gov.uk]
Sent: 14 December 2009 17:08
To: UK Tree Care
Subject: RE: Modified TPO's
"Are you seriously saying that once that area order is signed and served
then
there can be no modification that includes a new woodland area without a
new
order, new designation etc, followed by a revocation of the old."
Err Yes.
I understand where you are coming from and agree that in certain
circumstances that it would make sense to follow that approach. However
the law isn't necessarily about sense, its about what is legally
acceptable. In the case of TPOs its about process. Take a different
scenario:
The LPA out of urgency raise a TPO on and plot of land belonging to B, and
designate it as an area. The LPA receive comments and decide to alter the
TPO to cover the trees as individuals and a woodland. As part of this
alteration they leave out 2 lime trees at the bottom of A's garden.
Hitherto A has not commented, being satisfied that the trees he wanted
protected were on the order. As soon as the altered order is served B
nips out and chops down both trees. A complains. He has a copy of an
order telling him that those trees were protected and that they could not
be lopped topped felled etc without permission of the LPA. A checked with
the LPA when the TPO was served and was told if anyone applied for consent
to fell the tree then he would be consulted and given an opportunity to
comment. Further he was informed that under the councils scheme of
delegation if he objected to the work and that this was contrary to the
officer's recommendation the matter would be referred to a planning
committee. A is now wanting to know why he was not given the opportunity
to comment and how a de facto decision to allow the felling of protected
trees could go ahead without going through a process.
"But they didn't say otherwise either, so arguably it remains to be tested
"
IMHO it has been tested, they said it was outside the scope of the LPAs
powers to modify an order to the point where it becomes a different
animal. They don't need to qualify this its meaning is clear.
Steve
Steve Shields
Trees & Woodland Amenity Protection Officer
Shropshire Council
01743 252582
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