Sorry Andy I missed your last point.
I think if it is an offence then it is enforceable. However, that's not to
say it is in the public interest to prosecute, or, that, if the LPA has
knowledge that the accused had read the order and thought they were ok to
cause or permit the uprooting of the tree due to the typo/omission, then to
prosecute might be an abuse of process. I'd still go after the contractor
though!
Alastair Durkin
Senior Tree Officer
Planning Development Management
Tandridge District Council
The Council Offices
Station Road East
Oxted, Surrey
RH8 0BT
Tel: 01883 XXXXXX
Fax: 01883 XXXXXX
adurkin@xxxxxxxxxx.gov.uk
www.tandridge.gov.uk
-----Original Message-----
From: Alastair Durkin
Sent: 29 October 2014 14:46
To: UK Tree Care
Subject: RE: moving a tree covered by a TPO
Andy
Yes its tricky all right, and it would be interesting to have a legal view,
but my take would be that the offence is under the TCPA Act and the
Regulations thereof. The TPO document must be made "in the form set out in
the Schedule to these Regulations or in a form substantially to the same
effect". I would suggest that considering the Regulations make specific
reference to all of (a) to (f) being covered by the cause or permit offence
then the missing 'uprooting' within the schedule is just a typo and should
therefore be corrected. I mean, the offence is under the wording of the
Regulations, not the form of model order held within the Regs.
Be interested to know what Mr Mynors makes of it........
Alastair
Alastair Durkin
Senior Tree Officer
Planning Development Management
Tandridge District Council
The Council Offices
Station Road East
Oxted, Surrey
RH8 0BT
Tel: 01883 XXXXXX
Fax: 01883 XXXXXX
adurkin@xxxxxxxxxx.gov.uk
www.tandridge.gov.uk
-----Original Message-----
From: Andy Clout [mailto:Andy.Clout@xxxxxxxxx.gov.uk]
Sent: 29 October 2014 14:28
To: UK Tree Care
Subject: RE: moving a tree covered by a TPO
Alastair,
As Jim has kindly pointed out, the DCLG correction note only covered
typo's/punctuation errors, it did not alter those potential offences included
within paragraph 3. (2) (b) of the model order.
I appreciate that this paragraph states it is without prejudice to etc. but
the omission to the person receiving the TPO, whom may not be expected to be
au fait with associated documents, appears to be quite deliberate? It may
technically be an offence to employ A N Other to move a tree, but it is
presumably not enforceable?
Regards
Andy Clout
Landscape and Tree Officer, Planning Services www.waverley.gov.uk Direct
line: 01483 XXXXXX
-----Original Message-----
From: Alastair Durkin [mailto:ADurkin@xxxxxxxxxx.gov.uk]
Sent: Wednesday 29 October 2014 13:56
To: UK Tree Care
Subject: RE: moving a tree covered by a TPO
Charles
My copy of the 2012 Regulations prohibits uprooting (Reg 13.(d) and goes on
to prohibit the causing or permitting of offences (a) to (f), thus including
uprooting. To move a TPO tree is to uproot it, therefore an offence would be
committed I would imagine.
p.s. I also am not a lawyer
Alastair Durkin
Senior Tree Officer
Planning Development Management
Tandridge District Council
The Council Offices
Station Road East
Oxted, Surrey
RH8 0BT
Tel: 01883 XXXXXX
Fax: 01883 XXXXXX
adurkin@xxxxxxxxxx.gov.uk
www.tandridge.gov.uk
-----Original Message-----
From: Andy Clout [mailto:Andy.Clout@xxxxxxxxx.gov.uk]
Sent: 29 October 2014 13:19
To: UK Tree Care
Subject: RE: moving a tree covered by a TPO
Charles,
IMO proving wilful damage arising from the movement of young trees would not
be straightforward or something many LPA's would wish to attempt to pursue.
To my understanding, when the current model order was brought into force
under the 2012 Reg's the offence of uprooting was only attributed to those
undertaking the work. It was omitted from the potential offence of causing
or permitting such action to be taken which had been in place in the
preceding model order.
This may have been a typo (as per the date error in the preceding paragraph)?
Chris Kent of the DCLG did at the time post on UKTC to state that subject to
confirmation, a correction slip would be sent out and LPA's informed of the
error.........
It would be useful to know if any learned subscribers to the forum could shed
light on whether LPA's are at liberty to alter the model order in respect
either of the date error or the omission of the potential offence. I would
assume yes to the typo, but no to introducing an additional offence?
Regards
Andy Clout
Landscape and Tree Officer, Planning Services www.waverley.gov.uk Direct
line: 01483 XXXXXX
-----Original Message-----
From: Charles Bennett [mailto:Charles.Bennett@xxxxxxxxx.gov.uk]
Sent: Wednesday 29 October 2014 08:28
To: UK Tree Care
Subject: RE: moving a tree covered by a TPO
Hi
Your client would be sailing very close to the wind. Having got away with it
once he might not do so again.
He would certainly damage the tree, which is a criminal offence, in the
process of moving it. Uprooting is also a criminal offence, and the
legislation requires the replacement tree is planted at the same place as the
one removed, which he accepts is practical, so moving it might be construed
as destruction, even if it is moving it only 5m.
If the LPA are of a mind to prosecute they might also be of a mind to seek a
proceeds of crime order for the increased value in the property now that it
has an improved view. This will invariably be greater than the fine for
destroying the tree. And they could still require the tree is planted back
where it should be.
Charles Bennett
Landscape Architect/Tree Officer
Economic Development
Carlisle City Council
Civic Centre
Carlisle CA3 8QG
Direct Dial: (01228) XXXXXX
Email: charles.bennett@xxxxxxxxx.gov.uk
-----Original Message-----
From: David Bailey [mailto:oldoaktree@xxxxxxxxx.net]
Sent: 28 October 2014 19:34
To: UK Tree Care
Subject: moving a tree covered by a TPO
So my client has just prevent himself from going to court after cutting down
a TPO'd tree "accidently" and now has a wonderful view from his window.
He has replanted in virtually the same position with a similar species, a 3
metre standard. A passing comment was made by an investigating officer about
that he should enjoy the view for the next 5 years because then it will be
blocked again. Fair enough, cause and effect, but then he told me that in a
few months time he was going to move it over to the left by 5 metres!
It's an area order so there is no tree specific map, and to be quite honest I
can't see that he could be stopped or prosecuted for doing it as the wording
of the Act and Regulations really don't encompass 'moving.'
Anyone out there had to deal with illegal (or otherwise) tree "moving"!
Dave
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