Extraordinary Opinions of Legal Departments

[Gary Prentice]

What happened Gary?

 

They asked you to cease and desist.

 

Your guys we're going about their lawful business.

 

Did you offer to postpone on agreement of costs being applied and agreed for lost income??

 

I wasn't on site, so the following is what I've been told.

 

The enforcement Officer asked them to stop, my brother in law said that they wouldn't as there was no authority to prevent them carrying on and the officers left. All very calm with no-one getting excited.

 

Around 1 PM, the Planning Officer arrived with a NEW TPO dated today. By this time the tree was a stick with a little bit of foliage bearing limbs/ascending branches at the very top.

 

So legally, at that time, we were working on a protected tree. Credit to the PO, he said that he would post the order through the door (owners away) and then draw up an amended TPO excluding that tree. So he gave verbal consent to allow us to continue (I have emailed him to confirm this).

 

I'm glad he acted reasonably, being perfectly, at that stage within his rights to stop us! We would have had to stop, the tree or stem being protected, and then waited until the order was amended (I don't believe that the temporary order can be amended before confirmation) some time in the future.

 

It's all been a bit farcical. I know the enforcement officer, who is a nice lad but who really didn't understand the position and then attempted to explain why we were in contravention. More training is needed I think.

 

I find it concerning that the Legal fellow, who is quite senior, is advising the TO that the CA was still protecting the tree and writing to the owner saying the same!

 

I think that having written up a new order this morning, the authority must have revised their understanding. TBH I don't derive any satisfaction in this at all. I've an obligation to client but would have been happier if the LA had protected it properly in the first place. The tree could have been felled anytime since 9th December so at least no-one can accuse us of exploiting a short window of opportunity. The council made procedural errors based on lack of knowledge and failed in their duty. Hopefully the lessons will be learnt.

[kevinjohnsonmbe]

I wasn't on site, so the following is what I've been told.

 

 

 

The enforcement Officer asked them to stop, my brother in law said that they wouldn't as there was no authority to prevent them carrying on and the officers left. All very calm with no-one getting excited.

 

 

 

Around 1 PM, the Planning Officer arrived with a NEW TPO dated today. By this time the tree was a stick with a little bit of foliage bearing limbs/ascending branches at the very top.

 

 

 

So legally, at that time, we were working on a protected tree. Credit to the PO, he said that he would post the order through the door (owners away) and then draw up an amended TPO excluding that tree. So he gave verbal consent to allow us to continue (I have emailed him to confirm this).

 

 

 

I'm glad he acted reasonably, being perfectly, at that stage within his rights to stop us! We would have had to stop, the tree or stem being protected, and then waited until the order was amended (I don't believe that the temporary order can be amended before confirmation) some time in the future.

 

 

 

It's all been a bit farcical. I know the enforcement officer, who is a nice lad but who really didn't understand the position and then attempted to explain why we were in contravention. More training is needed I think.

 

 

 

I find it concerning that the Legal fellow, who is quite senior, is advising the TO that the CA was still protecting the tree and writing to the owner saying the same!

 

 

 

I think that having written up a new order this morning, the authority must have revised their understanding. TBH I don't derive any satisfaction in this at all. I've an obligation to client but would have been happier if the LA had protected it properly in the first place. The tree could have been felled anytime since 9th December so at least no-one can accuse us of exploiting a short window of opportunity. The council made procedural errors based on lack of knowledge and failed in their duty. Hopefully the lessons will be learnt.

 

 

Crikey! Interesting scenario!!

 

So, presumably, the tree was physically changing as the TPO was being written.

 

How can it have been accurately assessed as being worthy of protection since each minute that passed, another limb was removed.

 

The tree that existed when the decision to make the order was taken, was not the tree that existed when the order was served.

 

Mmmmm....

[Gary Prentice]

Crikey! Interesting scenario!!

 

So, presumably, the tree was physically changing as the TPO was being written.

 

How can it have been accurately assessed as being worthy of protection since each minute that passed, another limb was removed.

 

The tree that existed when the decision to make the order was taken, was not the tree that existed when the order was served.

 

Mmmmm....

 

I think the expediency was the second tree on site! In the original S211 Notice the client stated an intention to fell a second tree. This was either on the boundary and possibly shared with the neighbour, or actually the neighbours tree entirely.

 

Anyway, he decided he liked it and didn't want it gone after she'd submitted and then thought to discuss it with him! (I'll refrain from commenting)

 

 

Maybe it was quicker for the council just to change the TPO reference number and the date and reuse the earlier order - I don't know! But, luckily on the second visit to serve the new order common sense prevailed:thumbup1: