UKTC Archive

RE: Old TPOs

Subject: RE: Old TPOs
From: Alastair Durkin
Date: Feb 08 2019 09:09:09
Thanks Stephanie - possibly the lid this thread required.

Alastair


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Stephanie Hall
Sent: 07 February 2019 16:46
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: Old TPOs

Hi all


There are two different concepts here, (1) what level of evidence you need to 
bring a TPO prosecution which is based on a TPO where the Defence require you 
to prove the existence of that Order. In which case it is really a matter for 
the court as to what level of evidence they require to persuade them beyond a 
reasonable doubt that the TPO exists and bites in relation to the relevant 
tree(s)  Some magistrates may only be persuaded if they have seen the 
confirmation, others may be willing to accept less.


And (2) the technical validity of a TPO which can only be questioned in 
proceedings via a s.288 challenge to the High Court within 6 weeks of the 
date of its confirmation, after which the presumption of regularity kicks in. 
(the one caveat being that it may be so defective as to be a nullity which 
can be said never to have existed but those cases are rare and there has to 
be a very obvious defect like it failing to identify the tree for example).


Best

Stephanie

________________________________
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
on behalf of Jerry Ross <trees@xxxxxxxxxx.co.uk>
Sent: 07 February 2019 11:00:34
To: UK Tree Care
Subject: Re: Old TPOs

I'm not a legal mind, but the points I made yesterday about the concept of 
validity were argued in court by the defence counsel, who wasn't challenged 
on that interpretation.
The magistrates were just of the opinion that the TPO in question didn't need 
an endorsement or a certificate of confirmation and that a note of intent to 
confirm was sufficient.

(Actually, I suspect they weren't all that concerned about the letter of the 
law but just disliked the idea of someone getting around a TPO on a 
technicality.
Which, you might say, is fair enough; but it in no way helped to clarify the 
law. There again, it was only a magistrates court, so no very significant 
precedent could have been set anyway.)

On another but associated matter, Charles said that 'someone else' said 
that...

when the 2012 Regs came into force they had the effect of confirming any 
previously unconfirmed Orders. And I don't mean those caught in the 
transitional arrangements, I mean Orders made but not confirmed years, 
decades, previously.

Really?  Is that so?



On 07/02/2019 10:09, Alastair Durkin wrote:
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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Please consider the environment before printing this email Francis Taylor 
Building Inner Temple London EC4Y 7BY
DX: 402 LDE Tel: 020 7XXX XXXX Fax: 020 7XXX XXXX 
clerks@xxxxxxxxxxxx.co.uk<mailto:clerks@xxxxxxxxxxxx.co.uk>
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states it can be disclosed. It may also be privileged. If received in error, 
please do not disclose the contents to anyone, but notify the sender by 
return email and delete this email (and any attachments) from your system. 
Having regard to copyright, confidentiality, implied undertakings on 
disclosure, liability to third parties and insurance cover I do not give 
consent for use of this email or any attachments. My legal liability in 
respect of this email and any attachment is limited to the instructing 
client. No responsibility is accepted by FTB for personal emails, or emails 
unconnected with Chambers' business.

Disclaimer

The information contained in this communication from the sender is 
confidential. It is intended solely for use by the recipient and others 
authorized to receive it. If you are not the recipient, you are hereby 
notified that any disclosure, copying, distribution or taking action in 
relation of the contents of this information is strictly prohibited and may 
be unlawful.

This email has been scanned for viruses and malware, and may have been 
automatically archived by Mimecast Ltd, an innovator in Software as a Service 
(SaaS) for business. Providing a safer and more useful place for your human 
generated data. Specializing in; Security, archiving and compliance. To find 
out more visit the Mimecast website.



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