UKTC Archive

Re: Basis for TPO's

Subject: Re: Basis for TPO's
From: andersonarb
Date: Dec 22 2011 15:26:36

 


Hi Paul

Daniel has covered your questions comprehensively, but I would add one more 
thing important thing. That is that the Act does not define amenity. In this 
respect although the Blue Book gives guidance as to what the term may mean, 
an 
LPA has a significant amount of elbow room and can if they wish swing the 
term 
whichever way they want (as they can with expediency) provided there is 
reasoning behind it. In reality this means that even if you object to an 
order 
and confirmation has to be decided at committee, you may find it difficult to 
dissuade them from confirmation. In most circumstances, unless they have 
maladministrated the legal bits in some way, you are highly unlikely to 
succeed 
in the High Court and your best (really only) option if you really disagree 
with 
a TPO is to apply to remove the tree stating lack of amenity as your reason. 
Then if they refuse you can at least appeal to PINS and have it dealt with 
impartially.

Alastair

 

 

 

-----Original Message-----
From: Alastair Durkin <ADurkin@xxxxxxxxxx.gov.uk>
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Sent: Thu, 22 Dec 2011 11:52
Subject: RE: Basis for TPO's

Remarkably, I wouldn't particularly disagree with anything anybody has said 
but I note that according to the Blue Book, your High Court challenge can 
only be on the basis that the regulations haven't been followed. So if the 
tree was dead and they'd confirmed the TPO anyway that wouldn't be a reason. 

As most people to whom I've ever raised an objection regarding the imposition 
of a TPO keep telling me, "the Blue Book is only "guidance"" then I'm not 
sure how you you would make the High Court over-rule it. The Blue Book also 
cautions the expense of going to the High Court, but I note that some 
hairdresser recently went there by herself, on the grounds that she couldn't 
afford Counsel, and won! (not sure of the details).

There is an alternative course of action, that is to go and fell the tree and 
when you're up before the beak, argue that the TPO was invalid as the Council 
had done it all wrong and not complied with article 6 of the Human Rights 
legislation. Blah Blah Blah. (My small experience of trying to get the 
Council to prosecute cr@p tree work has been so unsuccessful that it does 
make me wonder if the first time they consider anything is only when they 
start to consider whether they might get a result at prosecution time) 
However I acknowledge this is a high-risk strategy and won't be trying it any 
time soon! 

That said if I was a Judge and came across some smug Elected Members 
pretending to have considered the serving of a TPO, I'd have em all shot as 
being in contempt of their Electorate..... I do note that Ron and others 
insist his lot are better than that but I've seen the way Rotherham, 
Barnsley, Donny, and Sheffield treat their electors, or at least me, and 
doubt their abilities to tell a tree from a lamp post.

Bill (or Clarkson)

PS. Blue Book is not only "guidance" it has the weight of any other 
Government Circular. (1.3)






 



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