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simsimo

Tricky TPO situation

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I've had the go ahead to remove 2 trees in a communal garden and the whilst discussing the proposed works, the residents discovered the trees had TPO's on them. After looking into it further they have found out that under TCPA 1990 s.201, which states that the authority has max 6 months exactly to confirm it. and if they don't confirm in that timeframe, the TPO is invalid. The TPO was confirmed 6 months and 7 days later, which is outside that timeframe, making it invalid.

 

The council stated that the legislation doesn't matter, as their internal guidance says otherwise.

 

After some back and forth, they said they cannot comment on the legality of the TPO and whether it is valid or invalidated by this breach of legislation. They told them to seek independent legal advise.

 

They then contacted a Planning solicitor who replied with the following: 

 

"I take the six-month point exactly. I could not agree with you more [...]

They didn’t confirm it within six months and therefore, it lapsed. Yes, that’s what I’m saying.

It’s no good the local authority saying that it was only a few days because using that argument, 31 mph in a 30 area is not an offence. There has to be a cut off somewhere. If anyone makes an application to an employment tribunal for example they have 3 months to do so and if it’s just one day late, the claim is thrown out.

It’s a six-month period, not six months plus one week".!

 

Soooo... I feel this is a slightly tricky one and don't want to make myself liable for any fines by removing the trees. Any advice would be welcomed and do you think that by getting it in writing that they take full responsibility for the removal I'd be clearing myself?

 

Cheers

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They missed the boat plain and simply. Their argument that it was "only by a bit" is nonsense, its like saying a little bit pregnant, no such thing.

 

I would "sharpen the big saw" to quote treequip, and crack on. 

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I think the only way to 'test' the validity of an order is through the High Court.

 

What year was the order served? It wasn't until, I think, 2012  that an order had to be confirmed within six months. 

Previously an order could be confirmed at any time  (I had one at 8 years), but between 6 months and confirmation the tree wasn't protected. 

 

It's possible that the TPO is valid

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Don't sharpen the saw just yet. And whatever you do don't crack on. Garrys spot on. Check the date the Order commenced and was confirmed. If it commenced 6 April 2012 or after then the TPO would be invalid.

 

If it was commenced and confirmed on or before 5 April it's valid no matter how long between making and confirming.

 

If it commenced before 6 April 2012 and was in the consultation period when the Regs came in then it must have been confirmed within 6 months of commencement. If it was confirmed after 6 months then it's invalid.

 

Hope that's not to confusing.

 

Reg 26 (2) 2012 Tree Regs might put it a little bit clearer.

 

Once you've ascertained the validity of the Order either apply if the Order is valid, if not let the Council know you intend to undertake the work explaining the Order isn't valid and demonstrating why. 

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14 minutes ago, simsimo said:

The TPO was served in 2002 but they seem sure that it had the 6 month confirmation date on it.

The TPO is VALID

 

Back in 2002 there was no statutory time limit by when it had to be confirmed. Just best practice guidance suggesting TPO's should be confirmed within 6 months.

 

The statutory limit came in with the 2012 Regs.

 

There is no legal mechanism to challenge the validity of the Order either. 

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1 hour ago, simsimo said:

do you think that by getting it in writing that they take full responsibility for the removal I'd be clearing myself?

No. You can't become immune from prosecution because someone else says they'll take the  blame.

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42 minutes ago, EdwardC said:

Once you've ascertained the validity of the Order either apply if the Order is valid, if not let the Council know you intend to undertake the work explaining the Order isn't valid and demonstrating why. 

That's possibly not the advice that would be in the best interest of the tree owner.... (i.e. in the delivery of a 'professional' service.)

 

Albeit possibly overtaken by events, if one was confident that the order was invalid, informing the council of intentions could result in the issue of a new order....

 

Is that a moral or professional high ground you're aiming for there Ed??  (I don't mind which, but it can't be both....  xD)

 

 

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Thanks for all your comments and advice. It looks like an application will need to be made to have the trees removed which will more than likely be rejected.

 

All of the residents (except one) are not going to be very happy about this.

 

Cheers

Edited by simsimo
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make the application and see what happens. I've walked away from a few simply because I don't need to 'taint' my rep. with the local TO.    I walked away from one last year as a customer had 'obtained permission to give a lovely cedar a very generous all over reduction',   when I asked to see the email detailing the permission it turned out it stated he was allowed to remove 1 storm damaged limb and reduce 3 other laterals,  when I pointed this out he got pissy and slated the TO (she was not present) and insisted I 'cracked on if I wanted paying'.  I told him to challenge the decision if he felt hard done by but I also stated that I agreed with the tree officers decision.

 

Sometimes it aint worth the hassle.

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