UKTC Archive

RE: Basis for TPO's

Subject: RE: Basis for TPO's
From: Charles Bennett
Date: Dec 23 2011 09:01:30
Bill

BA IMO the current widespread system of sticking the TPO objector in front of 
the full Planning Committee and giving the objector 3 minutes to make his 
case, is not any sort of "hearing or inquiry" (BB 3.38)

CB. It's quite clear that the "hearing or inquiry" follows on from the 
Committees site visit and would be, if it was carried out, an opportunity for 
the LPA Officers and those affected by the TPO to have some final 
discussions. It's is clearly not a hearing or inquiry in the sense that you 
infer. Of course discussions should be ongoing throughout the process, but it 
takes two to tango and very often the recipient of the TPO doesn't want to 
dance. 3.38 makes it clear that confirmation by Committee or sub-Committee is 
the way to go to confirm a TPO when objections have been made and need to be 
considered.

BA the same Officer serving the TPO and then considering objections does not 
comply with ECHR's Article 6 anyway

CB I'm not sure what the right to a fair trial has to do with a TPO, but the 
making/confirming of a TPO has been considered in respect of Protocol 1 of  
Article 1 the right to the peaceful enjoyment of one's possessions.

R (Brennon) v Bromsgrove DC, concerned the making of a tree protection order, 
a challenge was made to the order on the ground that it interfered with the 
claimant's right to enjoyment of his property in a way that was excessive and 
disproportionate.

Richards J rejected that submission, stating: 'So far as concerns Article 1 
of Protocol 1, the short answer, in my view, is that the statutory regime 
concerning tree preservation orders represents a fair balance between the 
general interest of the community and the requirements of the protection of 
the individual's rights, to use the language of the court in James v united 
Kingdom at para. [50]. An order may be made only where it is needed in the 
interests of amenity to do so. There are elaborate procedural safeguards, 
including the right to make representations before an order is made and the 
right to seek consent under the order and to appeal to an inspector against 
any refusal to give such consent. One sees in all of this a striking of the 
balance by the legislature, and one does not need to accord a wide margin of 
discretion to the legislature in order to reach the conclusion that the 
balance has been struck appropriately. Exactly the same considerations apply 
to justification of interference under Article 8' ([2003] 2 P&CR 33 at 
paragraph 33).

There may be more up to date stuff. Check your Mynors, mines still in the 
post. Oh and by the way Tony those perks don't extend to the Council buying 
me a copy. Like many I have to buy my own, and I can't off set it against my 
tax.

Merry Christmas and all that

Charles Bennett
Landscape Architect/Tree Officer
Economic Development
Carlisle City Council
Civic Centre
Carlisle   CA3 8QG
Direct Dial: (01228) XXXXXX
Email:  charlesb@xxxxxxxxx.gov.uk

-----Original Message-----
From: andersonarb@xxxx.com [mailto:andersonarb@xxxx.com]
Sent: 22 December 2011 17:20
To: UK Tree Care
Subject: Re: Basis for TPO's


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