UKTC Archive

Re: Old TPOs

Subject: Re: Old TPOs
From: Charles Bennett
Date: Feb 07 2019 13:19:19
That's my reading of it too Mark.

Charles

On Thu, 7 Feb 2019, 13:16 Mark Mackworth-Praed <uktc@xxxxxx.tree-care.info
wrote:

Hang on chaps

Sections 45 and 46 of the 1971 TCPAct have nothing to do with TPOs.
They're about revocation or modification of planning permissions.

And going back to the point about the 2012 Regs keeping all earlier
(confirmed and unconfirmed) TPOs extant, the relevant statutory provision
was S 193 of the Planning Act 2008, which states that it applies to Orders
that are "in force" or "may at any later time be in force". If a pre-2012
TPO wasn't confirmed, then it wouldn't have been "in force", so S193 of the
2008 Act and the 2012 Regs wouldn't apply to it, it seems to me.

Never a lawyer about when you want one

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: 07 February 2019 12:35
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: Old TPOs

Whoa there!
Life ain't so simple.

You say "information necessary only to identify the protected trees"
Well if the order wasn't confirmed (as the law requires), then they
weren't protected!

You also say "as long as you can defend your position then the LPA has the
upper hand"
You're rather assuming that 'you' represents an LPA!  If I, in defending a
client, can defend her position... well that's a different kettle of
mildewed TPO documents

But enough already.
I must get down to some work.


On 07/02/2019 11:59, Howe, Ron wrote:
It is a mess Jerry. Which is why I referred back the explanation notes
appended to the 2012 Regs, which basically said that all clauses and
previous Acts were revoked, save for the information necessary only to
identify the protected trees. Therefore, all previous TPOs stood as they
were with an assumption that they were made and therefore the intention was
clear. All Orders made since 2012 are a completely different matter.

I think my point is that as long as you can defend your position then
the LPA has the upper hand. And that is somewhat born out by the recent
court case comments. I think PINS are on a sticky wicket. A further point
is that people are notified of Orders when for example they buy a property.
Yet they don't challenge the old Orders do they. So, it is not as if the
opportunity isn't there. People just take the Order on face value, which to
me is acceptance of it.

As for land changing over time as result of development, we are lucky
here that we scanned and plotted all our TPOs 10 years back now so the
modern GIS overlays are really helpful.

Just sticking with the 1971-74 Acts for the time being, which lasted
right up until 1990 - Town and Country Planning Act 1971 S.46 and 45.
http://www.legislation.gov.uk/ukpga/1971/78/section/46/enacted

Ron Howe
Tree Officer (Planning)
Mole Valley District Council
Tel. 01306 XXX XXX


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Jerry Ross
Sent: 07 February 2019 11:24
To: UK Tree Care
Subject: Re: Old TPOs

Ron -
If you go back to the original legislation you'll find it's not as
simple as that - there is a very clear inference that if an order is
not confirmed by the SoS (because of no objections) it must still be
confirmed by the LPA.

It's a mess and the sooner all Orders predating 1990 are rescinded
(and re-created as necessary) the better.
In this case the mess resulted in the person involved being asked to
pay
£9000 in Council's costs - mainly because of the extensive work they
and their lawyers had to do to try (and in my opinion fail) to clarify
the confusion caused by the mess. So a private individual ends up
paying for poor legislation.


On 07/02/2019 11:05, Howe, Ron wrote:
I agree, and what I always bear in mind is that we have TPO office
files (which we have scanned and put online) however, all the original
Orders should be held by the legal department buried deep along with
terrier packs etc. with confirmations (as appropriate). With modern Orders
our legal department only accept the original Order once it is confirmed.
So, ultimately, the original Orders should be hived away with evidence of
confirmation, or otherwise. Many old Orders were confirmed by default. Now,
the modern confusion, led to the confirmation line being added to the TPO
template. It is however MALADMINISTRATION on PINS behalf to refuse to
accept that older Orders were confirmed in a different way and to
invalidate them. PINS need to be mindful of what the courts consider
correct. If you for example look at the attached 1980 TPO you can see the
default situation. If anyone wants to challenge the default then they
should provided evidence that the Order was opposed and revoked by the SoS
... including PINS.

So yes, you need to be able to defend your TPOs ... I hope this helps.

Ron Howe
Tree Officer (Planning)
Mole Valley District Council
Tel. 01306 XXX XXX

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Mark
Mackworth-Praed
Sent: 06 February 2019 09:35
To: UK Tree Care
Subject: RE: RE: RE: Old TPOs

I think Jon's quite right - a Committee resolution to confirm is just
that - a resolution. There has to be subsequent action on the Council's
part to give effect to that resolution (service of relevant notices,
signing & sealing of confirmed order with/without modifications etc), the
necessary actions being defined within whichever regulations were in force
at the relevant time. If those actions weren't taken, then the Order
wouldn't have been properly confirmed. If PINS is now taking a tougher line
on this, so much the better in my view.

All the best

Mark M-P


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Jon Heuch
Sent: 06 February 2019 08:59
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: RE: RE: Old TPOs

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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To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy
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Important: If you currently use a gsi-family domain name (gsi.gov.uk,
gcsx.gov.uk or gsx.gov.uk) you must replace it with a government domain
like gov.uk, gov.scot, llyw.cymru or gov.wales by March 2019.


This email is only intended for the individual or organisation to whom
or which it is addressed and may contain, either in the body of the email
or attachment/s, information that is personal, confidential and/or subject
to copyright. If you are not the intended recipient, please note that
copying or distributing this message, attachment/s or other files
associated within this email, is strictly prohibited. If you have received
this email in error, please notify the sender immediately and then delete
it.








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