UKTC Archive

Re: Old TPOs

Subject: Re: Old TPOs
From: Jerry Ross
Date: Feb 06 2019 10:37:47
How much does it cost to take a case to judicial review?

On 06/02/2019 10:21, Alastair Durkin wrote:
Hi Jerry, the Magistrates have no power to rule on the validity of the order 
in these circumstances I don't think. I would have thought your client would 
have needed to take the Council's decision to prosecute to a judicial review 
prior to it going to court (I'm sure the Council would then have held the 
case in abeyance until that was resolved) - in which case the validity of the 
order could be looked at and the case potentially falls away. It's an oddity 
of our legal system certainly. If Stephanie Hall is reading then she may have 
a view.

-----Original Message-----
From: <> 
On Behalf Of Jerry Ross
Sent: 06 February 2019 09:41
To: UK Tree Care <>
Subject: Re: Old TPOs

Jon wrote - "As many councils have TPOs dating back to the 1940s, this may be a 
serious issue"

Indeed. I attended a court on Monday involving a case of damage to an allegedly 
protected tree. The TPO was not quite as old as the 1940s; this prosecution was 
brought under the 1990 T&CPA (as amended)  but relied on a TPO made in 1977, 
itself based on the 1971 T&CPA.
There was no confirmation.
Prior to the offence, the council had been asked repeatedly for evidence of 
confirmation but maintained none was required for an unopposed TPO made under the then 
current legislation. This is wrong, as they accepted after the offence when, after 
prolonged ferreting around in their records office they eventually, months after the 
offence, dug out a n ancient bound volume in which was a brief memo indicating the 
intention to confirm. This was, as Jon describes, evidence of a decision being made 
("The sub-committee agreed to make a Tree Preservation Order...") But there 
was no trace of any document that could be regarded as a
confirmation: no signed, dated or sealed certificate was ever forthcoming, 
neither was the TPO itself endorsed. Even the plan, which had space for a 
signature and seal, was left blank.
Nevertheless the magistrates found the case proven and convicted.
The only basis I could see was that the relevant old legislation was 
remarkably vague about confirmation: it required it but it didn't explicitly 
state that it had to be included on or with the order.

It was only a magistrates court of course, where I suspect that defences 
based on legal technicalities, however well justified, tend to be disliked 
and not given the consideration that a Judge in a high court might.

On 06/02/2019 08:58, Jon Heuch wrote:

Looks like you need a lawyer that knows about legal process & procedure.

If I am not mistaken a committee meeting merely makes a decision (to
confirm). The confirmation is a separate process - the TPO being a
legal document - and the document itself needs to have something done
to it, or attached to it, with the appropriate signatures, seals,
stamps or whatever and of course a date..depending on the council's
procedures at the time...which of course  you have at the tip of our tongue!

I am intrigued to know if your experience is a sign of things to come,
or an error?

As many councils have TPOs dating back to the 1940s, this may be a
serious issue.


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