UKTC Archive

Re: Old TPOs

Subject: Re: Old TPOs
From: Jerry Ross
Date: Feb 06 2019 16:52:46
Alastair - Stephanie will be able to answer with (a lot) more authority than I can, but for what it's worth, my understanding is that it's not really a question of validity. A TPO is 'made' on the day it's drawn up and, if it includes a 201 direction (or is post 2012), it has legal force. But that lapses after six months unless it's confirmed. If there are strictly legal queries about the way the order was drawn up, then a challenge can be mounted in the high court within six weeks of the date of confirmation.  But clearly, if it's not confirmed, that can't apply. Essentially, if it's not confirmed the order doesn't exist, at least not as a legal instrument. So in the event of confirmation itself being called into question, that question is not about the TPO being valid or invalid - it's a question of whether it exists at all!

Does that in any way clarify things???


On 06/02/2019 16:29, Alastair Durkin wrote:
Hi Stephanie

That’s really useful.

So how does the defence get around the validity of the TPO not being 
challenged in any legal proceedings whatsoever bit? There appears to be some 
sort of weird disconnect there between the need for the prosecution to prove 
its case, and the defence actually challenging the evidence (the TPO) by 
means of telling the magistrates that in their opinion it isn't valid. If the 
Council says in evidence it has a confirmed TPO, are you saying that the 
magistrates are in fact permitted to question its validity? What does 
validity mean exactly? I find it all a bit confusing to be honest.

Certainly as Jerry alludes to, if I was in a position where I was being taken 
to court on the basis of a TPO that may not have been confirmed, then I would 
want to be able to question whether the TPO was in act in place at the time 
of the alleged offence.

Thanks

Alastair


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Stephanie Hall
Sent: 06 February 2019 12:16
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: Old TPOs

Hi All


I think that overall you would be best raising it as a matter of evidence, as 
per Jerry's client. I have a TPO prosecution tomorrow where the defence are 
raising a technical point (1950s TPO) in the magistrates and it is one that 
could go either way.


I wouldn't encourage a separate challenge to the decision to prosecute. You 
cannot challenge the validity of the TPO outside the period for a s.288 
challenge (now 6 weeks). So you will not get an order that says that such and 
such TPO is invalid unless it is part of a s.288 challenge at the time the 
order was made. Judicially reviewing the administrative decision to prosecute 
is a tricky one as you are essentially having to run the argument that either 
the evidential test or the public interest test is not met and the decision 
to prosecute is therefore an unlawful decision.


If you are basing it on the evidential test because you say the existence of 
the TPO has not been proven then the argument is a straight insufficiency of 
evidence point which is best taken as part of a defence. Albeit that you 
might have to take a tactical decision that on a technical defence you are 
better in the Crown Court with all the risks for costs/sentence that that 
brings. Or buckle in for an appeal by case stated to get you into the higher 
courts.


Best

Stephanie



________________________________
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> on 
behalf of Jim Quaife <jq@xxxxxxxxxxxxxxxxx.co.uk>
Sent: 06 February 2019 11:15:13
To: UK Tree Care
Subject: RE: Old TPOs

A barrister I was working with last year said to my client that JRs start at 
£20K.
Jim

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Jerry Ross
Sent: 06 February 2019 10:38
To: UK Tree Care
Subject: Re: Old TPOs

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: uktc-request@xxxxxx.tree-care.info
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Jerry Ross
Sent: 06 February 2019 09:41
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
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:
Charles



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.







Jon








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