UKTC Archive

RE: Old TPOs

Subject: RE: Old TPOs
From: Alastair Durkin
Date: Feb 07 2019 10:09:40
Although quite possibly any legal mind who might be lurking would be loath to 
hold forth either way, just in case they need to argue the matter either way 
in court 😉


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Alastair Durkin
Sent: 07 February 2019 10:06
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: Old TPOs

Thanks chaps, I do understand the concept that you suggest, and you are 
probably right, but it would be interesting to know from somebody with legal 
qualification. 😊

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Mark Mackworth-Praed
Sent: 06 February 2019 17:56
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: Old TPOs

I agree with Jerry - I think it's the difference between something being 
"valid", on the one hand, and "in force", on the other. 
I tried to make the same point earlier, but for some reason the email didn't 
reach the forum - so this is really just a test to see if this one does.
All the best

Mark M-P

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Jerry Ross
Sent: 06 February 2019 16:53
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: Old TPOs

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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