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Gary Prentice

Extraordinary Opinions of Legal Departments

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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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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 how I would interpret it

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T&CPA, Part VIII, Section (2) and (3)a

 

that he served notice of his intentions to do the act in question

 

and (3)b(ii)

 

after the expiryof the period of six weeks from the date of the notice but before the expiryof the period of two years

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Hahaha, the COuncil letter says that you have to 'apply' again because it's a CA. That old nugget comes up again.

 

Havign trawles through all this post, it seems clear to me as it has to others that in the letter of the law you do not have to re-notify. To that I would add that in the spirit of the law, tehre is allowance for TPOs not to be confirmed and therefore anticipation of circumstances where not confirming is appropriate. This seems to be one of those circumstances. It also is plain that the Council at a date immediately before the end of the 6 months did not deem the tree worthy of protection, so why would it when a new CA notification is put in? That's a rhetorical question. The safe assumption in law is that the legislation meant 2 years when it said 2 years and it meant 6 months when it said 6 months, and in the absence of legislation or guidance saying that a lapsed and unconfirmed TPO resets the CA clock, you have a robust 'defence' if the Council tried to prosecute you for felling in accordance with the original s.211 notice. What public interest would be served by attempted prosecution, apart from showing up the errors of the Council? None.

 

Fell away! Just check the client's and your post on that morning, then go for it.

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Hi Jules, I thought you may have jumped in earlier.

 

What's your opinion regarding my agent designation?

 

Although I didn't submit the 211 notice, the LA did serve that TPO on me. I assume that recognises me as an 'interested person' and I should have been informed that the order wasn't going to be confirmed.

 

I don't have much expectation of receiving another order.

 

On another note, if the legal department are telling the TO that the CA is protecting the tree, it's going to be an interesting conversation in a few days. I'd love to be a fly on the wall for that meeting!

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What's your opinion regarding my agent designation?

 

I'm just back from the hills.

 

"Just check the client's and your post on that morning, then go for it."

 

A new TPO would not have to be se4rved via an agent. It should go to the owner/occupier. Your previous role as agent may not be relevant. Play it safe. Check the mail while fuelling up (you should be looking out for the postie as part of teh risk assessment).

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That the legal department are telling the TO what they have is absurd. The whole situation is perplexing, as it strikes me that the LA in question just lack a proper understanding of Statute Law.

 

I would echo what Roz and Jules have stated and agree that you are well within your legal rights to fell the tree.

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I wish it wasn't like this. I agree with the TO's decision that the tree merits retention, I would in his position.

 

But, in working for the owner I have to work to achieve her objectives. It's a sorry state of affairs that it's come to this and to be honest, in this case, the blame lies firmly with the legal department.

 

Hopefully a lesson is learnt to prevent repetition.

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Sat in hospital having cancer treatment and still having to talk to the enforcement officer on the phone:sneaky2:

 

Because the council offered a consent for a pruning spec while the tree was protected, they seem to think it's still protected!:confused1:

 

We have the letter on site stating the order wasn't being confirmed, a copy of section 211 of the T&CPA and copies of the original 211 notice. There asking where our letter of permission is ffs.

 

Now being asked to halt work.:thumbdown:

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