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Gary Prentice

Extraordinary Opinions of Legal Departments

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I'm struggling to get my head around a conversation I've just had with a local TO. so I'll put it out to the collective minds for further discussion and opinions.

 

A client submitted to fell two ash trees in a conservation area. The TO thought they merited retention and subsequently served a TPO.

 

I objected (various reasons but not really pertinent to the discussion), as did the owner. We assumed that in due course we would be notified of a planning meeting. Time has passed, I've been checking online but the item hasn't come up on any PM agendas.

 

In December, I emailed the Planning Department to ask what their procedure was to consider objections/representations. (Surely these are considered by a third party and the TPO won't be confirmed under executive powers of the TO & PO - regardless of objections:confused1:) I'm still waiting on an answer to that:thumbdown:

 

Speaking to the head TO today I asked him what the procedure is. He's unsure but had been speaking to the head of legal recently, about a TPO that hadn't been confirmed and that had had objections I.E. Mine!

 

The legal eagle told him that it didn't matter, if the owner wanted to fell they would have to submit another Section 211 Notice because the tree was still protected by the conservation area:confused1: The original notice caused the tree to be protected (temporarily) so is no longer valid! and the process would have to start again:lol::lol:

 

 

I don't know whether to laugh or hold my head in my hands and cry:confused1:

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I'm struggling to get my head around a conversation I've just had with a local TO. so I'll put it out to the collective minds for further discussion and opinions.

 

 

 

A client submitted to fell two ash trees in a conservation area. The TO thought they merited retention and subsequently served a TPO.

 

 

 

I objected (various reasons but not really pertinent to the discussion), as did the owner. We assumed that in due course we would be notified of a planning meeting. Time has passed, I've been checking online but the item hasn't come up on any PM agendas.

 

 

 

In December, I emailed the Planning Department to ask what their procedure was to consider objections/representations. (Surely these are considered by a third party and the TPO won't be confirmed under executive powers of the TO & PO - regardless of objections:confused1:) I'm still waiting on an answer to that:thumbdown:

 

 

 

Speaking to the head TO today I asked him what the procedure is. He's unsure but had been speaking to the head of legal recently, about a TPO that hadn't been confirmed and that had had objections I.E. Mine!

 

 

 

The legal eagle told him that it didn't matter, if the owner wanted to fell they would have to submit another Section 211 Notice because the tree was still protected by the conservation area:confused1: The original notice caused the tree to be protected (temporarily) so is no longer valid! and the process would have to start again:lol::lol:

 

 

 

 

 

I don't know whether to laugh or hold my head in my hands and cry:confused1:

 

 

The reason may be as simple as they are good healthy ash, I've protected a good old healthy ash from being felled in a similar way. I felt we don't know where we'll be in 50 years from now regarding ash so I was going to do my bit to retain a tree from someone who wasn't going to live that long.

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The reason may be as simple as they are good healthy ash, I've protected a good old healthy ash from being felled in a similar way. I felt we don't know where we'll be in 50 years from now regarding ash so I was going to do my bit to retain a tree from someone who wasn't going to live that long.

 

I think you've missed my point!

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I think you've missed my point!

 

 

Sorry, I thought you were asking as to possibly why the TO went and TPO'd them. As for their incompetence with regard to paperwork or dealing with requests, head in hands I'm afraid.

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From the 2012 Regs:

 

Provisional effect of order

4.—(1) An order shall not take effect (other than provisionally in accordance with paragraph (2)) unless and until confirmed by the authority, and must be confirmed no later than the expiration of the period of six months beginning with the date on which is was made.

 

(2) Until confirmation an order shall take effect provisionally on the date on which it is made until—

(a) the expiration of a period of six months beginning with the date on which the order was made;

(b) the date on which the order is confirmed; or

© the date on which the authority decide not to confirm the order,

 

whichever first occurs.

 

I thought that the authority had to confirm within six months, where previously they could confirm at any time (although the tree wasn't protected after six months and/or until the order was confirmed)?

 

Am I correct that the order has to be confirmed within six months, if it isn't, it can't be confirmed after six months and a new order has to be served. I can't quite grasp the legalese of the the regulations.

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You are correct.

 

Without confirmation an order is [provisionally] effective for six months.

 

To be fully effective the order must be confirmed within six months.

 

If the order is not confirmed [within six months] then after six months have elapsed the provisional protection expires.

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I thought that the authority had to confirm within six months, where previously they could confirm at any time (although the tree wasn't protected after six months and/or until the order was confirmed)?

 

Am I correct that the order has to be confirmed within six months, if it isn't, it can't be confirmed after six months and a new order has to be served. I can't quite grasp the legalese of the the regulations.

 

Hi Gary, I'm not entirely sure but I'm sure Jon Heuch will be along shortly to be so.

 

I too understood the situation as you outlined in the first para above. Further guidance states:

 

The new regulations adopt one system where all new orders provide immediate provisional protection that lasts for six months and long-term protection once authorities confirm them after considering any objections or representations.

 

..which perhaps infers this still to be the case, i.e. you can confirm 'after' 6 months. However, presumably you would need to serve another sect. 211 notice as the actions of the LPA sought to retain the tree(s.)

 

IN summary...DUNNO :blushing:

Paul

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You are correct.

 

Without confirmation an order is [provisionally] effective for six months.

 

To be fully effective the order must be confirmed within six months.

 

If the order is not confirmed [within six months] then after six months have elapsed the provisional protection expires.

 

I'm clear on all of that, but can the order still be confirmed at a date after six months or does a new order have to be made?

 

I know of orders that weren't confirmed for eight years, then when the error was recognized a sudden confirmation lands on the owners door mat. I think this is/was an abuse, in that interested parties could have changed in the eight years and then have no opportunity to object or make representation. It's hardly within the spirit of the legislation.

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Hi Gary, I'm not entirely sure but I'm sure Jon Heuch will be along shortly to be so.

 

I too understood the situation as you outlined in the first para above. Further guidance states:

 

The new regulations adopt one system where all new orders provide immediate provisional protection that lasts for six months and long-term protection once authorities confirm them after considering any objections or representations.

 

..which perhaps infers this still to be the case, i.e. you can confirm 'after' 6 months. However, presumably you would need to serve another sect. 211 notice as the actions of the LPA sought to retain the tree(s.)

 

IN summary...DUNNO :blushing:

Paul

 

Sorry Paul, I can't agree (with your bit in bold)

 

When a s211 notice is served, if the LA oppose they can pretty much do nothing other than to serve a TPO. They can ask obviously ask the notifier to amend the notification to the effect that they don't oppose it, but otherwise4 -if they oppose it they must TPO it.

 

If they don't confirm the TPO they haven't then protected the tree, they intended to but then:

1) changed their mind or

2) didn't get their act in order and allowed the order to lapse after six months.

 

Surely it's a ludicrous position to say "we opposed the notification - but only for six months, so you can't do the work you said you wanted to do! - Re-notify!"

 

That approach would lead to a position where a LA could oppose a notification by slapping a 'temporary TPO' on for ever more in response and never ever confirming it, forcing a new 211 notice every six months.

 

My opinion is, the LA have been told of the intention to fell. If they had failed to oppose after six weeks, the notifier could legally do the notified work any time within two years. The LA have temporarily opposed it, but then failed to confirm their opposition by confirming the order ie they now don't oppose it, so the original notification then becomes not opposed and the work can be done?

 

I'm tempted, sorely tempted, to check the dates, and if six months have elapsed - go and stick a 'gob' in the trees, then tell the LA to take me to court if I've done something illegal. I'm sick and tired of trying to deal professionally with people who continually seem unable to get their house in order....

 

 

Rant over:biggrin:

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I'm clear on all of that, but can the order still be confirmed at a date after six months or does a new order have to be made?

I would say that a new order is required after six months without confirmation:

 

"... and [the order] must be confirmed no later than the expiration of the period of six months ... "

 

i.e. if it isn't then the order expires.

 

Anything else would not provide for a fair re-assessment/change in conditions.

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