UKTC Archive

RE: The TPO register

Subject: RE: The TPO register
From: Alastair Durkin
Date: Apr 21 2020 09:23:38
I agree with all you say Jerry, but it seems to me that it wasn't the failure 
to keep a copy of the order, or a register that that resulted in your 
client's conviction. It was in my opinion: 1) Your client's decision to take 
the risk (however frustrating), 2) the decision by the Council to take the 
case to prosecution (I won't comment on that), 3) the inability of the 
defence counsel to mount a robust rebuttal to what appears to be scant 
evidence of the TPO existing. 

What you are saying is that the TPO didn't exist, as there was minimal 
evidence of it having been confirmed), which is a completely different matter 
to a Council not keeping proper records of TPOs that do exist. 

"What is the point of a regulation in law if it carries no weight?"  - I 
agree. 

Alastair

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Jerry Ross
Sent: 21 April 2020 10:09
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: The TPO register



On 21/04/2020 09:39, Alastair Durkin wrote:
I don't understand what you mean Jerry. I don't understand how the failure 
to provide a copy of the confirmed order resulted in the conviction. 
Presumably the Council demonstrated to the court that the TPO existed, as 
that would be necessary for any conviction. The failure to have a copy 
available for public inspection upon request does not make the order 
invalid I don't think.

Alastair
Because after six months of asking, in deep frustration and convinced that no 
confirmed order existed (it doesn't, by the way) he was led to start to fell 
the tree The only evidence was a minute note that was only presented AFTER 
the event, agreeing that the order should be confirmed. Yes, I know PINS have 
accepted this sort of nonsense. But to my mind it's a bit like presenting 
with a photocopy of a passport application form and expecting to get past 
border control.
This is a <b>criminal</b> case where evidence is supposed to be beyond all 
reasonable doubt. A note of intent is not a certificate of confirmation; 
especially when the TPO does not appear on the land charges register for this 
or any of the other properties it's supposed to affect.
They had a good six months to make good the defect by issuing a new TPO but 
through, I don't know, complacency, arrogance and perhaps because it was only 
Joe Blow, not someone Important, they didn't.

The failure to have a copy available for public inspection upon request 
does not make the order invalid I don't think.

What is the point of a regulation in law if it carries no weight?
As Bill said, if the punter had been in breach of a regulation, the council 
would be down on her in short order. What's sauce for the goose should be 
sauce for the gander.
But evidently it is not.


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Jerry Ross
Sent: 21 April 2020 08:58
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: The TPO register


On 21/04/2020 08:28, Alastair Durkin wrote:
I doubt the right case will ever happen, because you would need to suffer 
a prejudice from the failure. How would that come about?
(ref. my last.)  How about the prejudice of having a criminal record?

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Bill Anderson
Sent: 20 April 2020 22:25
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: The TPO register

I suspect "the need seldom arises" Alastair largely because people don't 
have the resources to pursue these things through the Courts. I can't call 
it getting away with murder but in my experience an awful lot of LPAs 
treat the Government guidance with the sort of contempt that would land 
most owners of protected trees up before a Judge if they exercised similar 
contempt for the rules. I'm with Jon, waiting for the right case....

Bill.

On Mon, 20 Apr 2020 at 16:47, Alastair Durkin
<ADurkin@xxxxxxxxxx.gov.uk>
wrote:

"I'm still waiting for the right case to make the argument."

I suppose the very fact that the need seldom arises for such instant
scrutiny of the register might suggest it isn't very necessary.
Potentially something to consider for the next iteration of the TCPA
and the Regulations.

In terms of what was put before the judge, the point never made it
into the judgement so I can't share that with you, or I would.
Suffice to say, he wasn't interested in whether we had a literal
register, or whether the information had to be dug out of various
sources, so long as we held the information somewhere. I suppose if
you need it that badly, it's also unlikely that you need it in the next 5 
minutes.

Alastair


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
<uktc-request@xxxxxx.tree-care.info>
On Behalf Of Jon Heuch
Sent: 20 April 2020 16:26
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: The TPO register

Alastair



I haven't checked your council's database or the availability of
information so I am only speaking generally but based on experience
to date of possibly approaching 100+ council websites I have visited
to date...quite a few!



I of course don't know what arguments were put before your judge, &
of course I am interpreting the Regulation but "details of every
application under an order" sounds pretty clear: the register which I
can ask to see at any reasonable hour should give me details of every
application under an order. Not a list of all applications under all
orders. Not all applications for a particular address. Not a list of
every application hidden amongst all sorts of other information. The
regulation doesn't really require any interpretation - it's pretty clear 
cut.



The fact you hold information on a database is fine; you also have to
make it available in the appropriate format. As it happens many tree
work decisions don't even refer to the TPO under which the decision
is made...so I think it would be very difficult for a council to keep
a Register compliant with the Regulations. Some may have a paper file
with a copy of each decision...but I'm guessing many of those laden
filing cabinets are mere history now.



I'm still waiting for the right case to make the argument.



Jon






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http://www.boskytrees.co.uk/






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The UKTC is supported by Bosky Trees arboricultural consultancy
http://www.boskytrees.co.uk/



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

The UKTC is supported by Bosky Trees arboricultural consultancy
http://www.boskytrees.co.uk/