Bill, it was a lesson - the claimant (who we were prosecuting in magistrates
court for ring barking a group of oak trees that had been TPO'd earlier that
day) fired all sorts of things in a scatter gun approach (as they do) in
their High Court challenge. What eventually stuck was the Judge's opinion
that the TPO had not been served 'as soon as practicable' as we had sent it
recorded delivery, rather than hand delivering it. One claimant (out of
three) had suffered the prejudice of prosecution as a direct result of us not
hand delivering the TPO apparently.
Unfortunately neither I nor our legal team spotted that this would be a
problem. The reason we did not hand deliver is because it was snowing heavily
and it was already dark. I would have needed to drive about 10 miles in heavy
snow. I could have submitted this as evidence in terms of practicability, but
it wasn't spotted as a potential flaw in our case. We thought service was
good.
It's important to note that once you have sent the TPO by recorded delivery,
then strictly speaking that is service (apparently) and the TPO exists - it
doesn't actually have to have been delivered yet. So if somebody cuts the
tree down the onus is on them to make sure the tree isn't protected. So I
think our prosecution would have succeeded, but I don't think the Judge liked
the fact that our prosecution might succeed without the claimant actually
being told the trees were TPO'd, when previously they weren’t. There was
about two hours between us signing and sending the TPO and the ring barking
occurring. Possibly 'justice' was served by hook or by crook, but five 90
year old oak trees are all standing dead now, and the land was not developed
anyway.
It’s the old lesson about being in the civil courts. Both sets of Barristers
think they have a decent chance of winning the case. But one set is always
wrong. It’s a good thing to remember, however, optimistic your team are.
The one thing I regret is that the judge accepted my written evidence without
cross examination being permitted (presumably because he'd already made up
his mind), so I never got to do my bit in the witness stand on that occasion.
Alastair
-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info>
On Behalf Of Bill Anderson
Sent: 17 April 2020 15:39
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: Serving a TPO
I've been told by an Officer that the new TPO is "on the website" when as far
as I can see there's no facility for new TPOs to be publicised in this way. I
think some Planners presume that everything is publicised in the same was as
an application is usually publicised, when I've certainly never seen that. It
would be good if they were shown just like a planning application as then
there'd be a facility to comment in support or objection. Sheffield manage to
publicise theirs a little, but it's only under "legal notices," with no
facility for on-line objections or supporting comments.
If things were equal, then the new TPO would be publicised as the Officers
applying for permission to do something, pretty much the same as someone
applying to work to a protected tree.
My reading of Mynors suggests that High Court objections need to be on the
grounds that the procedure as specified by the Guidance wasn't followed, not
that the appraisals were wrong. Dunno about paperwork flaws.
Give us some detail about your High Court quashing Alastair?
Bill.
On Fri, 17 Apr 2020 at 15:26, Alastair Durkin <ADurkin@xxxxxxxxxx.gov.uk>
wrote:
That’s true and let's be honest, pretty poor practice, BUT (and any
legal eagles lurking may correct me) to be successful in the quashing
of a TPO in the high court, there needs to be more than just an issue
with the way the order was made or served, you have to have suffered a
prejudice arising directly from that failure. Simply having the order
in place is not a prejudice I don't think.
I'm pretty sure that’s the way it was explained to me when one of our
TPOs was quashed in the High Court ☹ . One learns one's lessons well.
Alastair
-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
<uktc-request@xxxxxx.tree-care.info>
On Behalf Of Jim Quaife
Sent: 17 April 2020 14:59
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: Serving a TPO
I'm certainly not a lawyer, but I very much doubt that that TPO would
have any legal force.
A TPO is a powerful instrument which can lead to a criminal
prosecution and an LPA has a distinct responsibility to process them
in accordance with the law.
However, if you do trust the law then don't read the "Secret Barrister"!!
Jim
-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info [mailto:
uktc-request@xxxxxx.tree-care.info] On Behalf Of collinsdesigns
Sent: 17 April 2020 14:25
To: UK Tree Care
Subject: RE: Serving a TPO
I know of an instance where a TPO was put on a tree in the garden of
house in a different road, with a wrong mapThis was then changed by
scribbling in the correct address at a planning meeting with the map
changed a month laterThe tree owner was never given 28 days to comment
on HIS tree in HIS gardenI always thought this was wrong.Sent from my
Samsung Galaxy smartphone.
-------- Original message --------From: Alastair Durkin <
ADurkin@xxxxxxxxxx.gov.uk> Date: 17/04/2020 12:34 (GMT+00:00) To: UK
Tree Care <uktc@xxxxxx.tree-care.info> Subject: RE: Serving a TPO Hi
JonathanRegulation 5(1) of the Town and Country Planning (Tree
Preservation)(England) Regulations 2012 provides that the notice must
be served on the “persons interested” in the land affected by the
order.The phrase “person interested” is defined in Regulation 2. A
person is “interested” in land, for the purpose of these regulations, if he
is:-• An owner of the land• An occupier of the
land• Known to the authority to be entitled to cut down, lop or
top any of the trees to which the order relates• Known to the
authority to be entitled to work by surface working any minerals in,
on or under the land affected by the order.This means that when
serving a TPO you should serve not only the owner and occupier but also the
following:-• If branches or roots from any of the trees
encroach a neighbouring property, the owner and occupier of that
property• Any developer known to the LPA to be interested in
developing the land• Any tree surgeon, etc., whom the LPA know
to have been retained by the owner, occupier or developer to carry out
works to any of the treesAny person known by the LPA to have rights to
work minerals in, on or under the land.They ‘need’ to send a copy of
the TPO and the Regulation 5 Notice. It would be sensible to send a
covering letter explaining how it all came about, but I don’t think it
is a statutory requirement.Hope that helpsAlastair-----Original
Message-----From:
uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info>
On Behalf Of Jonathan HazellSent: 17 April 2020 11:44To: UK Tree Care
<
uktc@xxxxxx.tree-care.info>Subject: Serving a TPOMorning all,Hope
everyone is safe and well?When serving a TPO, specifically in response
to a S211 notification to which the planning authority objects, what
MUST they send out to whom, andwhat MIGHT they send out if they were minded
to be
helpful? It's not aquiz, but a genuine enquiry for your understanding of
the process and procedure, thank you.--Thank you,Jonathan Hazell07501
059566jhazell.com--The UK Tree Care mailing listTo unsubscribe send mailto:
uktc-unsubscribe@xxxxxx.tree-care.infoThe UKTC is supported by Bosky
Trees arboricultural consultancy http://www.boskytrees.co.uk/-- The UK
Tree Care mailing listTo unsubscribe send mailto:
uktc-unsubscribe@xxxxxx.tree-care.infoThe UKTC is supported by Bosky
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