Extraordinary Opinions of Legal Departments

[Gary Prentice]

I keep meaning to save that site. I have now:thumbup1:

[Gary Prentice]

Interesting thread.

 

I don't think you're being pedantic Gary, but thorough, which shows integrity and sound professional investigation.

 

In reference to calculation; are weekends, holidays etc. included or excluded in the 6 months/168 days?

 

KevinJohnsonMBE had a thread recently, on the six week 211 notice. Someone posted the legislation from the T&CPA showing that there is no provision or allowances for bank holidays- six weeks is six weeks. So I'd assume six months are six calendar months, but I'll try to check and confirm that.

[Chris at eden]

Who's been taking my name in vain.....PS?

 

Well I think the TPO issue has been covered; if there is no TPO and you have served a s211 notice which has been followed by a TPO which has not been confirmed......and 6 months have passed....

 

the right answer is that you don't need to serve a new s211 notice.

 

Read Section 211 of the Town and Country Planning Act!

 

The way the law is written is that if offers you a defence. You have that defence if either you have notified the Council and they consented to the proposed tree works OR if 6 weeks have passed (but no more than 2 years).

 

Based on the lack of confirmation, 6 weeks have passed and there is no valid TPO. You thus have a defence to undertake the works that the Council have been informed of.

 

 

I stand corrected, maybe I should have read 211 before jumping in. Every day is a school day.

 

 

Sorry but - just a slight derail here - I have a client at the moment who felled some trees in a CA without consent and was duly prosecuted. Got a fine from the magistrate. He has now been contact by the council to say he needs to replace the trees, not a TRN, just a letter at this point. He asked me if this is allowed as he has already been punished which is nonsense to be fair, section 213 requires replacement.

 

Where it gets odd though is that the LPA have said if he doesn't plant them be February they will serve a TRN thus giving him 28 days to plant them, after the 28 days has passed they will send someone onto his land to plant the trees and recharge.

 

This in my view is an incorrect interpretation. The 28 days is the objection period in which you can appeal a TRN to the PINS. Therefore the TRN cannot take effect until at least 28 days after it is served. The guidance then says that the TRN should give a date by when the tree replacement notice should be complied with and that the authority should consider what the landowner can reasonably do. In reality I suppose the LPA are thinking they will make the deadline 1 day after the notice takes affect and they can use the 28 day to plan, but does this really consider what the landowner can reasonably do? It will also be getting very close to the deadline. Additional to this the trees have no public visibility and so it may not be in the interests of amenity to replace them so we are probably looking at appealing the TRN within the 28 days and this would definitely be pushing the situation outside of the planting season.

 

It seems a fair approach to me would be to serve the TRN saying trees to be planted by the end of December 2017. If they ignore then there is still 3 months left in the planting season to enforce and there would be plenty of time to process the appeal.

 

Any thoughts people?

 

Cheers

[kevinjohnsonmbe]

Some similarities with a circumstance I had recently Chris.

 

Received the letter giving notice of the intention to issue a TRN dated X.

 

The letter dated X gave 1 month notice of the intention to issue the TRN (X+1month)

 

The TRN should have been complied with within 2 months (X+1 month + < 2 months)

 

The appeal needed to be submitted prior to the TRN taking effect (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/438925/trn_app_guidance.pdf (para 3 towards the end)) so a quick meeting with the TO, a disclosure of the intention and grounds of the intended appeal resulted in the letter giving notice of intention to serve the TRN being withdrawn....

 

I'd agree, 28 (ish) days notice of intention to issue TRN is required.

 

(sent you a PM - not about this!)

[Gary Prentice]

I stand corrected, maybe I should have read 211 before jumping in. Every day is a school day.

 

 

And this is why AA Paul keeps bringing up CPD:biggrin:

 

 

We think we know or understand something, discuss with our peers (normally betters in my case) and come to a realisation we've more to learn and understand. Ya got to enjoy it:thumbup1:

 

 

This may be handy https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/438925/trn_app_guidance.pdf

Edited January 13, 2017 by Gary Prentice

[Gary Prentice]

Apologies, but I've more questions.

 

I've emailed the client, who is away now until next month. She apparently received a letter from the LA saying that the Order wasn't being confirmed. I don't know, yet, whether it also said that the tree was still protected by the Conservation Area.

 

As the client was the applicant originally, I understand that all notices etc go to her. But when I then asked the planning department for the date that they received the 211 notice, I think I became an interested party - particularly because they then served or sent a copy of the TPO to me.

 

By default, I think the planning department have acknowledged my role, maybe inadvertently, as an Agent and should, therefore, be sending me all the correspondence that they are sending the owner.

 

What are peoples opinions?

 

Theoretically, the LA could serve a new order next week (post it through the owners door), the tree would again be protected but I would none the wiser - having no confidence that I would personally get another copy.

 

Just wondering where I would stand if I started felling it, in the belief that no order was on it because I haven't been served a new TPO?

[Gary Prentice]

The LA are still adamant that the tree is still protected by the CA

[Daniël Bos]

The LA are still adamant that the tree is still protected by the CA

 

My wife is still adamant everything (absolutely everyting, ever!) is my fault.

Doesn't make it so though...

[Gary Prentice]

My wife is still adamant everything (absolutely everyting, ever!) is my fault.

Doesn't make it so though...

 

I think I'm married to her sister:biggrin:

[kevinjohnsonmbe]

The LA are still adamant that the tree is still protected by the CA

 

 

Press 🛎 to test!

 

Maybe write back referencing the original 211, point out that no TPO has been enacted and that >6 weeks has passed since 211 submission, intend to carry out work as previously notified - your move!!!

 

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