Tricky TPO situation

[kevinjohnsonmbe]

Trying to fell TPO trees on a technicality

That’s not quite what was suggested...

Tree(s) either do or don’t have statutory protections applied to them.

If they DO, you apply the mandated procedures.

If they DON’t, you don’t.

It’s pretty simple really....

[WesD]

Decision makers often become power mad and power hungry in all walks of life professionalism is a two way street. In this instance it matters not but there is a reason why there is a cut off of 6 months regardless of intentions. 

 

I intend on on becoming a billionaire not too sure that will happen though. 

Edited November 2, 2017 by WesD

[Gary Prentice]

7 hours ago, tree-fancier123 said:

Trying to fell TPO trees on a technicality - not really worth the trouble surely, even if it was after 2012 and the Council missed by a few days they clearly wanted to protect the trees and if they don't now accept the reasons for removal thats them doing their job - places look sh1t with all the trees cleared just for the sake of convenience, plenty of non TPO, non CA trees to earn a few hundred quid sawing up

I've felled a number of trees that the LA wanted to protect, at six weeks before a TPO was served and when an order wasn't confirmed and the LA still thought it was protected by the CA,

 

My view, and other will disagree, is that I have to work in the best interests of the client. If the LA has failed in their statutory duty to properly protect the tree and there is an opportunity to do what the owner wants, whose fault is that? I'd be failing my client if I had knowledge that they could legally do what they wanted and didn't inform them that they could. I'd go as far as to say it would be unprofessional not to advise and inform the client of the position. Whether they want proceed or not is their decision, not mine.

 

I'll admit we've felled a number of trees that I think should have been kept. That would have been kept if the LA had acted properly, within the timescales set out in statute. And every time I hope that this time will make them get their act together and stop it happening again. 

[tree-fancier123]

19 minutes ago, Gary Prentice said:

I've felled a number of trees that the LA wanted to protect, at six weeks before a TPO was served 

 

I'll admit we've felled a number of trees that I think should have been kept. 

If I knew for certain I wouldnt be prosecuted I'd not turn work away. I recently felled quite a nice small prunus that the customers neighbour didnt want to see gone,  it was legal and i wanted the money.  The whole countryside is being ruined by housing developments, so im just gonna do whatever to pay the bills in this post appocalyptic nightmare and not worry too much if i can help it

[Adam M]

6 hours ago, EdwardC said:

In coming to a decision on whether or not a tree is protected you would be well advised to discuss it with the decision makers, particularly if you're not sure. In this instance had the OP taken the advice on this web site they'd be in trouble, as would their client. Challenging the validity of a TPO in court would be very expensive, and in this case fruitless.

And outside of the 6 weeks period in which to challenge at High Court. 

[skyhuck]

Edward, does that huge chip on your shoulder make you walk round in circles?

[Gary Prentice]

28 minutes ago, EdwardC said:

 

Adam, after the six week period following confirmation in which you can challenge the validity of a TPO there is no mechanism to challenge the Order in any legal proceedings whatsoever. See s284 TCPA

I wondered the other night what you meant about challenges to validity. I'd forgotten the 28 day limit.

 

I can't remember, does the appeal inspector actually look at the validity of TPOS after a refusal? Apart from checking the order was confirmed?

 

I can't but feel that the cards are stacked against a tree owner once a TPO is served, no matter how badly it's been compiled or how ambiguous it may be. Don't get me wrong, I'd like to see more protection, but properly served and serviced, and more open. Currently there seems to be an attitude to retain everything because it's got an order, even if the tree was part of an area drawn up thirty years ago, with little thought of creating a sustainable canopy cover into the future by encouraging replacement planting to create more species and age class diversity.

 

Saying that, I've met some really good TOs who are really forward thinking and are open to discussion and a little horse-trading.

[Stubby]

40 minutes ago, EdwardC said:

No. I have a well balanced personality. I have a chip on both shoulders.

 

However, having worked as a climber, both employed and freelance, been a contract manager in a landscaping firm, managed an arb/forestry contracting business, been an arb approved contractor, done more than a decade as a local authority tree officer, and currently working as an arb consultant i  have a well rounded view of the industry and the various roles within it. I'm also chartered (MICFor), and a professional member of the AA. I've never been short of work. Somewhere along the line i must have got something right. And I've managed that without having to advise a client to break the law, or used them as a vehicle to grind an axe, or considered myself smarter than anyone else. In short I've tried to be professional.

 

I've got plenty wrong in all that time, but I've always held up my hands, put things right, learnt the lessons and moved on a lot wiser.

Are you suggesting that your advice be taken ...on an internet site ? Just asking .

Edited November 2, 2017 by Stubby

[kevinjohnsonmbe]

8 hours ago, EdwardC said:

In coming to a decision on whether or not a tree is protected you would be well advised to discuss it with the decision makers, particularly if you're not sure. In this instance had the OP taken the advice on this web site they'd be in trouble, as would their client. Challenging the validity of a TPO in court would be very expensive, and in this case fruitless.

Alright Ed, in order to avoid conflating the 2 tracks - in this example, it seems the tree WAS protected and the appropriate protocols should be followed.  I refer to my previous point, if a tree is subject to statutory protection, the appropriate protocols should be followed.  

 

However, it's necessary to unpack your assertion that the only way to ascertain that position is via the expensive and time consuming legal route.  If a competent individual cannot ascertain the existence, or otherwise, of statutory protection - well that's a different topic....

 

I may be misreading / misinterpreting your suggestion that liaison with the entity that has the authority to implement statutory protection is the appropriate course of action?  If I'm not, your suggestion is bullocks - especially in it's relation to professionalism.  

 

If you have a client that wants a tree removed and there is no statutory protection (having diligently checked), and the contractor is not morally opposed to undertaking the task, liaison with the entity that has the potential to block the client's aspiration would be a notably unprofessional betrayal of a client confidentiality AND a ridiculous business model.  

 

There's the ideal world, and then there's the real world....

 

What is this obsession you have with axe grinding....?

 

I'm out.  

[skyhuck]

8 hours ago, EdwardC said:

Hi Kevin. I'm pleased that you're coming around to my point of view. However, there are three scenarios here not two.

 

1. Tree protected, go through the process. I agree.

 

2. Tree not protected, sharpen the saw and crack on. Fair enough, no problem there.

 

3. This case. 'Questionable' TPO and what to do. Advise your client that they could risk it on the basis you don't think that an organisation you have no authority over or influence in won't persue them, or you, into the courts. Rather than acting in a professional manner in yoir clients interest, discussing the matter to seek clarity from the decision makers, and advising your client accordingly.

 

It seems obvious to me that some people seem to want to take every opportunity to knock LPA's and use their clients as an arm-length means of continuing to knock the Council. 

 

It seems to me the vast majority of those doing the knocking have little, if any, experience of working as a tree officer, let alone much wider industry experience. All they like to see, or confess to seeing, are the decisions that go against them. And of course as they're smarter than the tree officer so the tree officer must be wrong.

 

Edward, I think you need to read the opening post again, they did contact the council,  "The council stated that the legislation doesn't matter, as their internal guidance says otherwise"    Why did the LA not state the TPO was made before the legislation came into place?  If you are correct the planning solicitor is also incorrect. My post was in reference to the suggestion that a few days over the time does not matter.

 

I have over the years  had some pretty appalling experiences with TO's. IME a lot have a terrible attitude and try to increase their power with utter nonsense. Some insist on a TPO form for a 211 notice, some put replanting conditions on a 211 notice felling they have not TPO'd. One TO tried to tell me that listed building statues protected the trees within the garden.

 

I had one where a knackered HC dropped a limb, I told the client to email a 5 day notice, she got back a snotty email threatening legal action if we  touched the tree. A week later it dropped another limb, she then got a letter from the TO giving her 7 days to remove the tree, or they would do it and bill her.

 

Fortunately our local TO's are OK and I get on well with them, BUT I make it very clear I put my clients and their interests first. I never inform them of my intentions when checking for TPO's.

 

 Its not my job to help the TO.