UKTC Archive

RE: Service of TPOs -

Subject: RE: Service of TPOs -
From: Alastair Durkin
Date: May 22 2014 11:19:54
Thanks for posting Rodger. I'll keep my counsel for the time being if that's 
ok. There are still a few unresolved issues outstanding. 

Alastair 

-----Original Message-----
From: Rodger Lowe - Senior Tree Officer (RED) 
[mailto:Rodger.Lowe@xxxxxxx.gov.uk] 
Sent: 22 May 2014 11:32
To: UK Tree Care
Subject: RE: Service of TPOs - 

I got this, which is an extract from a Legal Journal.

My sympathies Alastair, ring barking is a malicious, wilful, spiteful little 
act whatever the circumstances

Facts
On 5 March 2013, certain trees on an access track were "ring barked" (a 
procedure where bark is stripped from a tree, which will kill the tree if 
done correctly).
On 6 March 2013, a developer (A) tabled plans illustrating development 
potential for a site in the vicinity of the track. These proposals alerted 
the local authority (TDC) to the possible need to protect trees in that area 
with a TPO.
On 7 March 2013, TDC's tree officer inspected the site. The officer noted the 
ring barking and decided that there was an urgent need for a TPO. That same 
day, TDC took steps to find out who owned this part of the site. TDC 
established that part of the land was owned by Mr and Mrs Damesick (D). Part 
of the affected land fell within a separate title owned by C. According to 
the official copies of the registers of title, C lived at the same address as 
D, but in fact C lived elsewhere.
On 8 March, A obtained C's permission to ring bark the trees on C's land. A 
instructed tree surgeons (B) to carry out that ring barking.
On 10 March 2013, A wrote to the chief planning officer of TDC by e-mail, 
referring to the possibility that TDC would come under pressure to make a TPO 
in relation to trees affected by the proposed development.
TDC continued to work on the draft TPO, but did not mention this to A. The 
TPO was completed on the afternoon of 11 March 2013 and deposited with TDC. 
The TPO protected several oak trees on land owned by both D and C. At this 
time, the TPO had provisional status.
Later on 11 March 2013, TDC's tree officer took the TPO, together with the 
notice required by Regulation 5 of the TPR 2012, and personally delivered it 
to D. He also personally delivered papers relating to the TPO to C at D's 
address, as this was shown as C's address on the Land Registry title to her 
land. At around the same time, copies of the TPO and the relevant notice were 
posted to A.
On the evening of 11 March 2013, B arrived at the site to carry out the ring 
barking. B had checked TDC's website, to make sure that the trees that were 
to be ring barked were not subject to a TPO. B indicated that there was no 
TPO notification attached to the site gate at that time, but on 12 March, A 
noticed a TPO notification on the gate, although this possibly related to a 
different TPO from the one in issue.
On 13 March, a copy of the TPO and the accompanying notification arrived at 
A's registered office by post.
D had informed TDC that C did not live at their address and provided C's 
actual address. They also informed C directly about the TPO notification. TDC 
posted another copy of the notification to C at the right address and this 
arrived on 14 March 2013.
No efforts were made to give notification to B.
The TPO was confirmed by a planning committee at TDC some months later. The 
area covered by the confirmed TPO was smaller than the area shown in the TPOs 
that had been served in March.
The challenge to the TPO
A, B and C challenged the TPO under section 288 of the TCPA 1990 (see 
Quashing a TPO). In accordance with that section, they had to show that 
either the TPO was not within the powers contained in the TCPA 1990 or that 
requirements in respect of the notice had not been complied with and they had 
suffered substantial prejudice as a result.
The challenge under section 288 of the TCPA 1990 was based on three grounds:
•       The TPO was not legally served.
•       The TPO did not comply with the relevant legislation.
•       The TPO should not have been confirmed because the planning committee 
members were misled by a report as to whether or not service had been 
effected properly and the time at which trees were damaged.

Top
Decision
The High Court quashed the TPO.
Serving a TPO
Regulation 5 of the TPR 2012 requires that a TPO must be served on interested 
persons as soon as reasonably practicable after it is made (see Making a 
TPO). The court's opinion was that this requirement served two purposes:
•       Ensuring that the protection of a tree or trees is identified as soon 
as possible.
•       Alerting people to the risk of committing a strict liability offence 
by carrying out prohibited works to protected trees (those set out in section 
210 of the TCPA 1990). This is important because ignorance of the existence 
of a TPO is no defence (Maidstone Borough Council v Mortimer [1980] 3 All ER 
552).
To establish that a TPO should be quashed following a failure to serve it in 
accordance with regulation 5, an applicant would have to show that it had 
suffered substantial prejudice as a result of the failure to comply with the 
prescribed requirements. The High Court's view was that there were three 
questions to be answered:
•       Were A, B and C "persons interested" in the land affected by the TPO, 
for the purposes of the TPR 2012? (See Who was a "person interested" in the 
land affected by the TPO?)
•       Was the TPO served as soon as reasonably practicable, as required by 
regulation 5 of the TPR 2012? (See Was the TPO served as soon as reasonably 
practicable?)
•       If there had been a failure to comply with regulation 5, did that 
failure lead to substantial prejudice? (See Did substantial prejudice arise 
from the failure to comply with TPO requirements?)
Who was a "person interested" in the land affected by the TPO?
As an owner of affected land, C was clearly an interested person as described 
in regulation 2(1) of the TPR 2012. The court was also sure that A was an 
interested person because it had an entitlement to fell the affected trees 
and TDC was aware of this.
B was not a "person interested". There were many possible firms of tree 
surgeons who could be engaged to carry out works to the affected trees and, 
unless TDC knew that B was entitled to carry out the works, B did not fall 
within the category of "persons interested" in regulation 2(1).
Was the TPO served as soon as reasonably practicable?
The question of whether the TPO was served as soon as reasonably practicable, 
as required by notification regulation 5 of the TPR 2012, was more difficult 
to answer. The court noted that, for C and for D, TDC elected for personal 
service (although it turned out that the TPO would later be sent by post to 
C). This approach was understandable, as there was an urgent need to stop 
further damage to trees. The court thought that, if TDC had formed the 
opinion that service by hand was "as soon as reasonably practicable" for C 
and D, then the same approach should have applied to A too. As A was 
responsible for the works being carried out to the trees, service on A was 
arguably even more important than service on C and D.
The court found that the TPO was not served on A as soon as reasonably 
practicable. Similarly, when it became apparent that C did not reside at the 
same address as D, the court thought that TDC should have effected a hand 
delivery of the notice at the correct address as soon as the error came to 
light. As such, the court was also not satisfied that the TPO was served on C 
as soon as reasonably practicable.
Did substantial prejudice arise from the failure to comply with TPO 
requirements?
There was an obvious potential prejudice to anyone facing prosecution for 
breach of a TPO it did not know about. As to C, she was not at risk of 
prosecution in this case. She was obliged to replant trees that she would not 
have had to do, had the TPO not been in place, but the court thought this was 
not a sufficient detriment to amount to her being substantially prejudiced by 
the delay in notification. As such, C's application for quashing the TPO on 
this ground failed.
The court rejected a submission that A could have made enquiries directly to 
the council about a TPO, as there was nothing known to A at the relevant time 
that would have suggested that a TPO was, or might be, in place. It was not 
surprising that TDC had not mentioned the proposed TPO to A earlier in the 
process, as a suggestion that trees might become protected could have 
increased the chance of damage to the trees before the TPO could be issued.
While TDC claimed that A operated a "fell first and ask questions later" 
approach to tree works, A could have stopped B from carrying out the works 
had personal service been effected on A on the afternoon of 11 March 2013 
(when personal service was effected on D and was attempted for C). The High 
Court found that A had been substantially prejudiced by TDC's failure to 
serve the TPO as soon as reasonably practicable. A was therefore successful 
in its claim and the court quashed the TPO.
The other grounds for challenge
As explained in The challenge to the TPO, there were two other grounds for 
challenging the TPO under section 288 of the TCPA 1990. In view of its 
decision on the first ground, and the subsequent quashing of the order, the 
court declined to consider the other grounds.

Top
Comment
This case may prove reassuring to anyone carrying out works to trees that, if 
they have checked to make sure the affected trees are not subject to a TPO, 
and they have not received a notice of a TPO, they should be able to carry 
out the works without inadvertently committing an offence (although they 
might need to make an application to quash the order under section 288 of the 
TCPA 1990, as A did in this case). However, see Strict liability.
The decision is, however, a potential problem for local planning authorities, 
who will want to make sure that TPOs they issue are not open to being 
quashed. If a TPO is quashed under section 288, it comes to an end. There are 
a number of procedural points arising from this case and local authorities 
must:
•       Identify all the "persons interested" and serve them with notice of 
the TPO.
•       Serve the TPO as soon as reasonably practicable.
•       Reduce opportunities for claims of substantial prejudice.
Identify all the "persons interested" and serve them with notice of the TPO 
The court mentioned that there was some evidence to indicate that TDC might 
not have appreciated that A was a "person interested" in the land affected by 
the TPO (as specified by regulation 2(1) of the TPR 2012) and that, as such, 
TDC had to serve the TPO on A as soon as reasonably practicable to be sure 
that it would be effective.
It is clear from this case that a local authority that wishes to make a TPO 
must make identify all of the "persons interested" and notify all of those 
persons as soon as reasonably practicable. Failing to do this may leave the 
TPO open to challenge under section 288 of the TCPA 1990.
While this requirement is clear from the wording of regulation 5 of the TPR 
2012, it might be easily overlooked, especially where there is some urgency 
in issuing a TPO.
Serve the TPO as soon as reasonably practicable While the High Court did not 
state that personal service is always required (indeed this may be 
impractical where interested persons are not based in the locality), in this 
particular case TDC perceived an urgent need to protect trees from works that 
were expected imminently and in these particular circumstances personal 
service was appropriate.
The decision suggests that there may be a subjective element to the test of 
how quickly notice must be served. The court referred to TDC's decision to 
effect personal service on C and D as significant in reaching the view that 
service had not been effected as soon as reasonably practicable on A and C. 
That seems an unusual approach to interpreting "as soon as reasonably 
practicable", as the concept of "reasonableness" usually involves on 
objective test based on how an ordinary person would have viewed matters.
As a result of this decision, local authorities might feel compelled to 
effect personal service for TPOs where at all possible and especially where 
there is any element of urgency. Local authorities may now be unsure if 
service by first class post, or similar method of delivery, is going to 
suffice in any given situation.
One comfort to local authorities is that a failure to observe a procedural 
requirement such as this is not of itself sufficient to require that a TPO be 
quashed under section 288 of the TCPA 1990. The failure must cause 
substantial prejudice to the claimant as well.
Reduce opportunities for claims of substantial prejudice In this case, the 
High Court decided that although neither A nor C had been served with the TPO 
as soon as reasonably practicable, C had not suffered substantial prejudice 
as a result. Had A not successfully shown that it did suffer such prejudice, 
the TPO might have stood.
Implicit in the decision is that, had TDC decided not to prosecute A in 
respect of acts carried out before A actually received notice of the TPO, A 
might also have been unable to show it had suffered substantial prejudice as 
a result of the failure to effect personal service on it.
This suggests that, if a local authority urgently wishes to protect a tree or 
group of trees in view of anticipated works, it can take two different 
approaches:
•       If possible, effect personal service on all persons interested in the 
affected land as soon as possible.
•       Effect service in other ways, such as by post, but to be very 
cautious about prosecuting an interested person in respect of any works that 
occurred before the notice was actually served on that person.
An LPA might be able to avoid the risk of creating substantial prejudice to 
someone who is being notified by post by promptly contacting them by 
telephone or e-mail to let them know that the TPO has been made. The argument 
would be that the person who has been informally alerted to the TPO's 
creation has suffered no prejudice as a result of not receiving formal notice 
of the TPO as soon as reasonably practicable. The efficacy of this strategy 
has not been tested.
Strict liability
The decision also leaves open the possibility that, had A not succeeded in 
its challenge to the TPO, B could have committed an offence for carrying out 
works to the protected trees, even without knowledge of the TPO (and B was 
not entitled to be served with notification). In reality, this is probably 
quite a slim risk, as A would presumably have informed B of the creation of 
the TPO and halted the works. A particularly cautious tree surgeon or 
gardener might find it safest to check regularly with the owner of the land 
and, if different, the person who has engaged their services, to make sure 
that no TPO has been notified to them, at least where there is any reasonable 
chance of a TPO being made.




-----Original Message-----
From: Howe, Ron [mailto:Ron.Howe@xxxxxxxxxxx.gov.uk]
Sent: 22 May 2014 11:26
To: UK Tree Care
Subject: RE: Service of TPOs -

The assessment by the legal team is a bit overzealous scaremongering.
The principle of what is reasonable service has long been set out by the 
government. The single case in question is a one off situation where someone 
was quicker than the eye ... They beat the system. It still remains that the 
most reasonable thing and LPA can do is to send Orders and confirmations by 
recorded post.

Ron Howe
Principal Tree Officer (Planning)
Mole Valley District Council
Tel. 01306 XXX XXX

-----Original Message-----
From: Alastair Durkin [mailto:ADurkin@xxxxxxxxxx.gov.uk]
Sent: 22 May 2014 10:25
To: UK Tree Care
Subject: RE: Service of TPOs -

We still haven't actually received the transcript of the judgement yet.

Alastair

-----Original Message-----
From: Daniel Wynn [mailto:Daniel.Wynn@xxxxxx.gov.uk]
Sent: 22 May 2014 10:07
To: UK Tree Care
Subject: Service of TPOs -

Our legal team just sent me this.......

"TPOs: method of service may be critical (High Court) The High Court has 
quashed a tree preservation order (TPO) on the basis that a person interested 
in the land affected by the order had suffered substantial prejudice as a 
result of the local authority's failure to serve the TPO on that person as 
soon as reasonably practicable, as required by the Town and Country Planning 
(Tree Preservation) (England) Regulations 2012 (SI 2012/605).
While the local authority had written to all of the interested persons 
affected by the TPO, it had failed to deliver the TPO in person to all of 
them. On the facts of this case, personal service was required to satisfy the 
requirement that service be made as soon as reasonably practicable. A 
developer that had authorised works to trees covered by the TPO suffered 
substantial prejudice as a result of only receiving notification of the order 
by post and so the order was quashed.
This case contains guidance on what steps may need to be taken by a local 
authority to reduce the chances of a TPO being quashed under section 288 of 
the Town and Country Planning Act 1990 and will interest not only local 
authorities, but also anyone who is proposing works to trees that might 
become protected by a TPO. (Village Developments plc v Tandridge District 
Council [2014] EWHC 1484 (Admin) (28 February 2014).)"


Dan W

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