UKTC Archive

Re: Can alleged damage to a TPO'd tree be dealt with via a planning enforcment action?

Subject: Re: Can alleged damage to a TPO'd tree be dealt with via a planning enforcment action?
From: Julian Morris
Date: Dec 04 2018 15:13:09
No other takers?

The offences are in the Act, regardless of which Regulations. See TCP A 1990 
s.210, but make sure it's an up-to-date version as there have been many 
changes since 1990.

Prosecution can be pursued either as a summary conviction or on indictment. 
The offences are the same, but the penalties under the latter are unlimited.

So I don't see how a Council can take enforecement action as a planning 
matter, unless 'enforcement' is just a generic expression for pursuing 
prosecution for non compliance with an Order.

Now, people talk about these being summary offences but it's not that simple. 
The offence I presume you're going to be defending is that someone "wilfully 
damages, tops or lops a tree in such a manner as to be likely to destroy it". 
Two judgements are required. Was it wilful (and see C. Mynors comments in the 
ongoing law review on how unsatisfactory a term that is) and is it likely to 
destroy the tree?

Those are questions that only the courts could decide, following evidence. 

So I exect it's a loose use of 'enforcement' that you're hearing. If court 
action is being prepared, my recollection of privacy laws in LAs is that the 
matters can (and probably must) be withheld from the public while under 
consideration and promotion.

I hope that helps.

Julian A. Morris - Professional Tree Services
jamtrees.co.uk  and  highhedgesscotland.com
0778 XXX XXXX - 0141 XXX XXXX


Sent: Tuesday, December 04, 2018 at 12:58 PM
From: "Bettina Broadway-Mann" <broadwaytrees@xxxxxx.com>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: Can alleged damage to a TPO'd tree be dealt with via a planning 
enforcment action?

Dear All,
An interesting scenario that I would like to pick your brains about.

A client of mine has a TPO'd mature tree on their land, and the LPA have
announced that they are going to take enforcement action against them for
alleged damage to the roots of the tree.

An enforcement officer and an external arb consultant chosen by the LPA
attended site to meet my client and look at the tree and the surrounding
area.

My client was not cautioned or interviewed under caution at any point then
or since.

It has now emerged that the LPA has opened a planning enforcement case and
is intending to present this to the planning committee in the near future.

The LPA has said that the landowner cannot see the tree report that they
commissioned, nor can they see the enforcement report going to committee,
or make any representation to committee either.

Here in Wales we are still under the 1999 TPO regs, and my understanding of
the regs (please correct me if I am wrong), is that as it is a criminal
offence to damage a TPO'd tree, there would have to be a court case against
my client.

Could someone please confirm / refute that an LPA can deal with alleged
damage to a TPO'd tree by planning enforcement only?  And if so, what
action could the LPA then enforce on the landowner?

Many thanks as always,
with regards
Bettina



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