Extraordinary Opinions of Legal Departments

[Roz]

In short my understanding is that if the TPO was not confirmed for what ever reason then the tree is still protected by the CA designation HOWEVER as you had submitted a S211 which would now be over the 6 weeks by default you have deemed consent? and can therefore fell the trees.

[Gary Prentice]

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.

 

 

 

In short my understanding is that if the TPO was not confirmed for what ever reason then the tree is still protected by the CA designation HOWEVER as you had submitted a S211 which would now be over the 6 weeks by default you have deemed consent? and can therefore fell the trees.

 

That's my understanding/opinion. I wish Mr Mynors hadn't moved on to pastures new:001_smile:

[Chris at eden]

Hi Gary

 

Yes the 2012 regs require that the order is confirmed within 6 months, you cant confirm later. You are correct about the old system in that it could be confirm after the 6 months but the tree would be unprotected for the period between the end of the 6 months and confirmation. Although you could confirm after 8 years as you say, the guidance specifically advised against this for the reasons you outlined so they shouldn't really be doing that. May even be a case for judicial review - don't quote me on this though.

 

As for your situation, its unusual but I would say you need to serve a new 211 notice. Its a pain yes but the LPA responded to your original 211 and there are a number of reasons as to why they may not have confirmed. Long term sickness for example, or someone dropped the ball. I still think its a new 211. I see what you are saying but they couldn't simply keep serving new provisional orders every 6 months as this would end up with the ombudsmen, not to mention it would be a ridiculous amount of work to administer TPOs in this way.

 

Cheers

[Jon Heuch]

I would say you need to serve a new 211 notice.

 

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.

[Gary Prentice]

Hi Gary

 

 

 

As for your situation, its unusual but I would say you need to serve a new 211 notice. Its a pain yes but the LPA responded to your original 211 and there are a number of reasons as to why they may not have confirmed. Long term sickness for example, or someone dropped the ball. I still think its a new 211. I see what you are saying but they couldn't simply keep serving new provisional orders every 6 months as this would end up with the ombudsmen, not to mention it would be a ridiculous amount of work to administer TPOs in this way.

 

Cheers

 

Hi Chris, an interesting opinion. I don't really see, legally, why reasons why the order wasn't confirmed should carry any weight or be relevant, it either is or it isn't. Not saying that I don't appreciate that for varying reasons things don't get done as they should.

 

 

My comments on the LA continuing to temporary TPO are purely hypothetical, but I find our local legal departments interpretation difficult to comprehend and hypothetically they could administer Notices this way - in fact, this is what they are or appear to be doing in this particular situation.

 

The whole situation has been frustrating. The client submitted to the TO - who isn't in planning. I asked planning on what date they received the submission from him, to clarify when the clock started. (Does it start when a council officer receives it or when the planning department actually get it?) The planning officer refused to take calls or answer my emails for a week before serving the order. After that he admitted that six weeks had elapsed on the monday when I originally enquired and that week was used to compile the order which was served on the friday. The client could have legally felled all week, if we'd been able to confirm the dates.

 

 

I don't disagree with the order at all, if I was the TO I'd want to protect it. I strongly disagree with being stone-walled because they haven't done their job efficiently and effectively and then act in what appears to be a under-hand manner to cover up their failures.

[Gary Prentice]

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 think we can now stick a fork in this thread..... It's done!:thumbup:

 

 

Am I the only one who gets fed up with the lack of correct interpretation of the law, by the people who are employed to administer it?

[Gary Prentice]

If the TPO has lapsed, and unless the LPA make a NEW TPO and confirm it within 6 months, you can fell the tree so long as you do it within two years of the notice.

 

It's not that difficult a concept to grasp, is it? So why can't my LA do it? All this just becomes such an un-necessary waste of time and I don't feel that I (or anyone else) should have to instruct or inform the planning and/or legal departments about the T&CPA.

 

Leaving wok now to walk the dogs and de-stress:001_rolleyes:

[Gary Prentice]

And my next question is........

 

Does anyone know how the six months are calculated? If the order was served on Jan 1st, does six months elapse on the 1st of June? Or does it elapse after 26 weeks?

 

Being pedantic, as I sometimes am, six months seems a little ambiguous, some months are longer than others, there's more days in February some years than others etc

[Tommy Hutchinson]

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?

[Tommy Hutchinson]

There's nothing in finer detail about the calculations of the '6 month' period:

 

"Is there a time limit for confirming Orders?

 

Authorities can only confirm an Order within a 6 month period beginning with the date on which the Order was made. If this deadline is missed and an authority still considers protection necessary it will have to make a new Order."

 

Source: https://www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#planning-authorities-confirm-TPO