UKTC Archive

Re: Old TPOs

Subject: Re: Old TPOs
From: John Booth
Date: Feb 08 2019 12:52:09
If access needs to be arranged then maybe the trees don’t feature highly in 
the public domain then maybe TPO not appropriate!?

Regards,

J A Booth MBA, MSc, FRICS, FICF, FCIHort, RCArborA, CUEW, CEnv, DipArb(RFS), 
FArborA, NDArb, LCGI(Hort)
Chartered Surveyor, Chartered Arboriculturist, Chartered Environmentalist & 
Certificated Expert Witness

On 8 Feb 2019, at 12:29, Howe, Ron <Ron.Howe@xxxxxxxxxxx.gov.uk> wrote:

Mr Pinchin and I worked out, years ago, that even if you employed an 
officer to review Orders, that it would take about 5 years. Why, because 
you wouldn't expect one person to that work non stop ... it would drive a 
person crazy. The best approach and, what you would end up with is lots of 
old Orders revoked and new Orders with mainly frontage trees. The logistics 
of getting into every property, notifying and arranging visits with owners 
and so on would take an immense amount of time.

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 Alastair Durkin
Sent: 07 February 2019 15:24
To: UK Tree Care
Subject: RE: Old TPOs

I'm losing the will to live Ron. The Government needs to give us all a pot 
of money so we can get rid of our historic orders and replace them with 
shiny new ones.


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Howe, Ron
Sent: 07 February 2019 14:42
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: Old TPOs

The TPOs of the time referred to S.45 and S.46 of the Act in the making of 
Development 'Orders'. My screen shot explains this as clause 5. You also 
need to read section 61, which is not as clear as it might first seem. It 
is actually a very circular set of clauses. Parts III, IV, V of the Act 
simply include the aforementioned clauses. Which is what is giving us on 
here grief.

http://www.legislation.gov.uk/ukpga/1971/78/contents/enacted

http://www.legislation.gov.uk/ukpga/1974/32/contents


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 Alastair Durkin
Sent: 07 February 2019 14:04
To: UK Tree Care
Subject: RE: Old TPOs

That’s a very good point Mark. Must fact check Ron more regularly. Fake 
news!


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Mark Mackworth-Praed
Sent: 07 February 2019 13:16
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: Old TPOs

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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