Tricky TPO situation

[iptable]

On 11/3/2017 at 19:05, EdwardC said:

You make some interesting points Jules, but its crystal clear. Mynors says of the six week time limit to challenge the order in the High Court, 'It may not be extended for any reason whatsoever', reflecting the wording of the TCPA. He goes on to reference  couple of cases on the matter, including one where the applicant could not possibly have known about the  decision, (in this instance a a planning decision), within the six weeks time to challenge it. So as with all these things they're not new, and they've been tried before. The upshot is, after six weeks, even if you didn't know the TPO had been confirmed, or even where the the TPO was a nullity, you  can't challenge it in any legal proceedings whatsoever, and any attempt to try and do so would fail. I'm sure someone will still try though, despite the legislation, and previous cases.

 

Lord Denning when Master of the Rolls, when considering just such a case said  'the rationale for upholding time limit clauses is that it is in the public interest to promote certainty of the executive's actions. If the courts were to allow plaintiffs to come to them for remedies long after the time limit for doing so has expired, the acts or decisions of authorities would be held up or delayed'

 

Or as Lord Justice of Appeal Michael Mann explained in R. v. Cornwall County Council, ex parte Huntington (1992), (one of the cases Mynors references); the legislative intention is that questions as to invalidity may be raised on the specified grounds in the prescribed time and in the prescribed manner, but that otherwise the jurisdiction of the court is excluded in the interests of certainty.

 

Errors/typos in drafting legislation does not demonstrate the law is flawed. It demonstrates that people who draft laws are flawed, or does it just prove the human condition.

Hi EdwardC,

 

The TPO was made under s201 of TCPA1990 (this is made clear in the first sentence of the TPO itself).

 

According to the legislation (link below), the TPO is valid until 6 months from the date it was made or until confirmed, whichever comes clear. That's quite a clear confirmation that the TPO is invalid if not confirmed in 6 months - in actual legislation. This is quoting legislation under which the actual pre-2012 TPO was made. Doesn't appear to be a confusion in this.

 

Since you are quoting the legislation, can you please explain which part of it pertains to overwrite the s201 (from link below) in actual legislative law? The 201 states clearly validity to one of 2 things happen, whichever is first, also quoting the 6 months exactly.

 

This is based on the actual fact that '6 months is 6 months, just like legislation states, not 6 months and a week' in the same way that '30 mph limit is 30 mph limit, not 30 and 7', taking into account what the legislation states.

 

https://www.legislation.gov.uk/ukpga/1990/8/section/201

 

If you can point me at a place of legislation which claims that the 201 is actually just advisable, not enforcable, or indeed overwrites 201, I would be grateful.

 

Kind Regards,

 

Rob

[Gary Prentice]

12 hours ago, iptable said:

Hi Gary,

 

The TPO was made under s201 of TCPA1990 (this is made clear in the first sentence of the TPO itself).

 

According to the legislation (link below), the TPO is valid until 6 months from the date it was made or until confirmed, whichever comes clear. That's quite a clear confirmation that the TPO is invalid if not confirmed in 6 months - in actual legislation. This is quoting legislation under which the actual pre-2012 TPO was made. Doesn't appear to be a confusion in this. Let me know if I missed something crucial, though it seems very clear what it means.

 

https://www.legislation.gov.uk/ukpga/1990/8/section/201

 

Kind Regards,

 

Rob

 

 

Good Morning Rob and welcome to Arbtalk

I apologise, it's early and despite reading your post several times I'm failing to see your point. 

The distinction I was trying to make was to the date of the opening posters TPO.

 

Prior to the 2012 regulations, the application of provision 201 meant that the tree(s) were protected for six months or until confirmation - whichever came first. If the order wasn't confirmed within the six months the protection ceased, BUT the order could be confirmed at a later date (and be valid and legal)

 

The 2012 regs changed this position. If the OPs order was served post 2012 the regs were different. An order that wasn't confirmed couldn't be confirmed after six months. A new order has to be made from scratch, the original order couldn't be confirmed six months and a week, a month or years later.

 

I went into this situation myself a few years back, where a clients tree was served under section 201 and not confirmed. The council told the owner the tree was protected for the next eight years, refused consent to fell twice and then subsequently confirmed the original order. As the original order was pre 2012 it was perfectly legal (apart from the LA actually being in a position to require and determine a planning application). 

 

If, in the original posters case, the order was pre 2012 there's no argument - the LA could confirm 6 months and one week after. If post 2012, then a new TPO should have been served. I would expect that now that this issue has been raised with them, and if the order was post 2012, good practice would be for them to serve a new order.

 

Gary

[iptable]

2 hours ago, Gary Prentice said:

Prior to the 2012 regulations, the application of provision 201 meant that the tree(s) were protected for six months or until confirmation - whichever came first. If the order wasn't confirmed within the six months the protection ceased, BUT the order could be confirmed at a later date (and be valid and legal)

 

Morning Gary,

 

Thank you for the response. I am still failing to see what you have just said though.

 

According to the link I sent (legislation gov uk):

Quote

(a)shall take effect provisionally on such date as may be specified in it, and

(b)shall continue in force by virtue of this section until—

 (i)the expiration of a period of six months beginning with the date on which the order was made; or

 (ii)the date on which the order is confirmed,

whichever first occurs.

 

Which essentially, legally means, that the provision of TPO will be legally in effect for six months only or until confirmed, whichever occurs first (not "in the order in which they occur", which is another legal phrase, used to describe what you just described). This means, once one of the points (i) or (ii) occurs, the provision of 201 ends and is no longer in force with whatever effect the end of such s201 provision is (in this case, invalidation of the order).

 

There is an "or" between the two points, legally specifying that it must be one OR the other, not one and the other some time later (i.e. both cannot occur, whichever comes firsts occurs ONLY). As (i) occurred only, the TPO is invalid. The (ii) can no longer occur legally, due to the "or" at the end of (i) in conjunction with "whichever first occurs".

 

Please let me know if there is a provision in the legislation which makes the s201 only a guidance or makes it invalid, as the s201 provision is quite clear to me.

 

Kind Regards,

 

Robert

 

[Gary Prentice]

51 minutes ago, iptable said:

 

Morning Gary,

 

Thank you for the response. I am still failing to see what you have just said though.

 

According to the link I sent (legislation gov uk):

 

Which essentially, legally means, that the provision of TPO will be legally in effect for six months only or until confirmed, whichever occurs first (not "in the order in which they occur", which is another legal phrase, used to describe what you just described). This means, once one of the points (i) or (ii) occurs, the provision of 201 ends and is no longer in force with whatever effect the end of such s201 provision is (in this case, invalidation of the order).

 

There is an "or" between the two points, legally specifying that it must be one OR the other, not one and the other some time later (i.e. both cannot occur, whichever comes firsts occurs ONLY). As (i) occurred only, the TPO is invalid. The (ii) can no longer occur legally, due to the "or" at the end of (i) in conjunction with "whichever first occurs".

 

Please let me know if there is a provision in the legislation which makes the s201 only a guidance or makes it invalid, as the s201 provision is quite clear to me.

 

Kind Regards,

 

Robert

 

Sorry, I'm on my phone so I'll have to be brief. 

 

Pre 2012 it was not uncommon for  LAs to confirm later (a lot later as I  know of one confirmed after 13 yrs)

 

I can't remember where in the 1990 act it allowed this, but it'll be there somewhere (or LAs were confirming orders unlawfully)

 

what doesnt help, IMO, is the 2012 regs being an addendum or modification to the act- which makes it difficult (even more so) to follow.

 

I'll try to follow this up this evening to quote chapter & verse, but I'm confident in my understanding of this.

 

reading your post again, I think the key word is 'provisionally' - (b) applies until (as a provisional order) (I) or (ii) occurs/expires. 

 

So, in affect at the expiry of six months the prov order ceases to protect unless the order is confirmed. 

 

We we are really looking at the wrong section though. The answer should be in the confirmation section of the 1990 act I think- that orders could be confirmed at a later date. 

 

Sorry, the best I can answer right now

[Gary Prentice]

Thank you Edward, I think that you have explained the position perfectly.

 

 

[iptable]

Hi Edward / Gary,

 

Many thanks for your response. Please see my responses inline for your consideration and comment.

 

1 hour ago, EdwardC said:

Of course with TPO's the problem here is obvious. Make an order, consult for 28 days, by which time there are no trees left. Those drafting the legislation foresaw this problem and gave LPA's the power to make the order temporarily effective immediately.

 

s198 & s199 TCPA give the powers to make TPO's.

Agreed

Quote

s201 allowed LPA's to bring the TPO, made under s198 and s1999, into force immediately for a period of six months, that's all. After six months that temporary period of protection provided by s201 ceased, however, the order still existed but had no effect.

 

No - here is what we are disagreeing on.

 

Section 201(2) clearly states:

Notwithstanding section 199(1), an order which contains such a direction—...

With the ... being the rest of section 201. Notwithstanding means replacing in legal terms. As such, if provision is made under 198 and 201 (like this one), then 199 is automatically in force and the 201(2) replaces 199(1).

 

As such, section 198 allows to make the order provision and section 199 should be read as is, except for point(1), which is to be replaced in full by contents of 201(2). The s199 states when order is valid and when it isn't. This essentially makes the provision invalid after 6 months if not confirmed within that time (as part 1 of 199 is replaced by 201(2) as per 201 under which the notice is made).

 

In 201(2), which now replaces 199(1):

Notwithstanding section 199(1), an order which contains such a direction [...] shall continue in force by virtue of this section until [...six months OR confirmation...] whichever first occurs.

 

I aim your attention at the wording of "AN ORDER which contains such direction" and "CONTINUE IN FORCE ... UNTIL" ... "WHICHEVER OCCURS FIRST".

 

(upper case used to highlight specific words, not shouting, not to be interpreted as rude)

 

Seriously, I will need details of why what I have just read, quoted and interpreted is wrong, if it is.

 

Quote

s199 makes provision for Regulations setting out how the orders are confirmed. In the OP's instance that would be the 1999 Regs. There is nothing in these Regs requiring the TPO be confirmed within six months. see Regulation 5.

 

The 1999 regs are not quoted as being used in this order instance, although if they were, TCPR1999(3)(2)(e) does allow to make the order under the TCPA1990(201). I don't see the point in bringing 1999 regs into this. The TCPR1999(5) is a procedure for confirmation. As such, it contains required procedures, not time limits, as per legislation usage guidance. The TCPR1999 altogether explains the procedure and order that the councils must follow when implementing TCPA1990, not the rules (or time limits therefor) within.

 

Quote

If the order was confirmed within six months it became permanent. If it wasn't confirmed it still existed but had no force, it didn't cease to exist. It could therefore be brought into force at any time afterwards by confirming it. The guidance at the time, which carried the weight of a government circular, said;  'The LPA should ensure they reach their decision on confirmation without undue delay. A TPO may include a section 201 direction which secures the protection of the trees on a provisional basis for up to six months from the date of the making of the TPO. The LPA should be ready to make their decision on confirmation before the end of this period. If they fail to make their decision within the six month period, they are not prevented from confirming the TPO afterwards. But they should bear in mind that, after the six months, the trees or woodlands lose the protection of the section 201 direction until the TPO is confirmed. In the event of a significant delay beyond the six month period the LPA should consider, before confirming the TPO, whether it would be more appropriate to make a fresh TPO, particularly if land affected has been newly occupied by people who were unable to comment on the original TPO.'

 

The 2012 Regs changed this see Reg. 4, by introducing the words, 'must be confirmed no later than the expiration of the period of six months beginning with the date on which it was made.'

 

Hope this helps clarify things.

I saw that guidance before. It is essentially incorrect and does not follow the actual legislative law. This could be the reason why it has been removed from guidance papers in many councils (although some used it) (source: I did call a lot of councils).

In any case, guidance aside (not legally binding, does not carry legal weight, is simply a guidance, of which some parts may not be correct, or thereof ... - guidance papers on issued guidance papers - yes they exist, and say that guidance may be wrong!), here speaking of actual legislation which does carry legal weight.

 

Kind Regards,

 

Robert

 

 

[Stubby]

My brain hurts .

[iptable]

8 minutes ago, Stubby said:

My brain hurts .

Yes, welcome to law, where a validity of legislation depends on the interpretation, rather than what it meant, because someone couldn't be bothered to use simple English.

 

EdwardC, we will have to agree to disagree. Since the s199 sets out actual timing for when the order is enforceable and s201 overwrites the very first paragraph of it, I don't see how you can override s201 and perform a confirmation later (since it states that the order shall only continue in force until either a or b occurs, whichever is first, but not in order when both occur. Such provision for when both occur is not made at all - call it gray area if you will). The s199 is overwritten by virtue of s201 and sets out the timing for s198.

 

I'll stop tormenting my brain now

 

Kind Regards,

 

Robert

 

[kevinjohnsonmbe]

23 minutes ago, Stubby said:

My brain hurts .

The discussion ventured out of the realm of useful / realistic into the realm of academic accuracy back at the point where Ed suggested checking everything with the TO.  

 

Meanwhile, the debate will rage on trying to find the elusive finite and definitive position on a circumstance that may (or may not) arise once in a blue moon.  

 

It would take longer to read and consider this thread than it would to say "...I'll pass on that job and find 2 others that are likely to pay better than the time this one would take up..."

 

And (as if it needed an and) you'd probably take even longer than the time it took to read and consider this thread to get a definitive answer out of a LA....  (whoops, dropped my axe )

 

My proposal - Sack the job off, go for a fat boy breakfast, watch daily politics then have a kip on the sofa, job done!

 

 

[Adam M]

2 hours ago, iptable said:

Yes, welcome to law, where a validity of legislation depends on the interpretation, rather than what it meant, because someone couldn't be bothered to use simple English.

 

EdwardC, we will have to agree to disagree. Since the s199 sets out actual timing for when the order is enforceable and s201 overwrites the very first paragraph of it, I don't see how you can override s201 and perform a confirmation later (since it states that the order shall only continue in force until either a or b occurs, whichever is first, but not in order when both occur. Such provision for when both occur is not made at all - call it gray area if you will). The s199 is overwritten by virtue of s201 and sets out the timing for s198.

 

I'll stop tormenting my brain now

 

Kind Regards,

 

Robert

 

Briefly, the TPO in the opening post was made pre-2012 therefore under different Regs to those which apply now. Pre-2012, TPO's could be confirmed after the 6 months although wouldn't be protected in that limbo period, post-2012, if it's not confirmed within 6 months, it needs remaking from scratch.