Tricky TPO situation

[Stubby]

8 hours ago, EdwardC said:

No. I'm saying that advice you get from an internet site should be taken with a pinch, a very large pinch, of salt. No matter who gives it. After all you have no comeback for bad, incorrect advice. As I said, I have been known to be wrong. But the first step in learning from your mistake is to admit it. Pretending it never happened and brushing things under the carpet will never result in learning to do things better.

Ok thanks for that ( taken with a pinch of salt ) .

[kevinjohnsonmbe]

Ok thanks for that ( taken with a pinch of salt ) .

(Spat coffee! Avoided nasal discharge though...!!)

[daltontrees]

I reckon some praise is due to Edward C for taking the time to set out the situation clearly. It's as good a treatise as I have seen anywhere on the internet. As for axe-grinding, that's irrelevant and distracting. The law is the law.

 

But there's a wee clarification due. It's true the validity of an Order can only be challenged in the High Court, namely challenges of the lawfulness of the processes followed on making the Order. But that's not the end of it. A TPO can be challended on judicial review, rare and expensive and risky as this may seem. The Council's actions are subject, like everythign else they do, to common law rules of natural justice, and if they have made an Order based on no evidence or the decision to make the Order is was unreasonable or if spurious and irrelevant factors have been taken into account and swayed the decision to make an Order which otherwise wouldn't have ben made, a challenge may succeed. There is theoretically no time limit for a judicial review.

 

The odds are stacked in favour of the Council only insofar as raising a judicial review is a hideously expensive business. Up here in Scotland challenges on planning appeal decisions are not at all uncommon, but there's usually £millions of development value at stake. Awards of expenses usually follow success, but not always, and not always completely. It's a bit of an expensive gamble. Would-be litigants must provide their own salt.

[daltontrees]

I expect our disagreement on this comes from a difference between scottish law and English. The appeal court in Scotland is the Court of Session. We have similar substantive and procedural Ultra Vires tests grounds for appeal against a TPO. In both Scotland and England the 6 weeek period stars from when the Order is confirmed, but clearly if the owner or intersted party was not advised of the confirmation of the Order, there would be procedural Ultra Vires and the right of appeal would subsist beyond the 6 week period. In England I really don't know if it would be taken by the High Court or by the Court of Appeal, since the High Court woud have no statutory basis to take it. Whichever court took it, I hope it's clear that since it would be the interested party's first appeal, it could be made on either procedural or substantive grounds, and if it were the Court of Appeal, the matter could be deferred to the High Court to deal with the substantive issues.

 

The Law Commision's review of these sorts of rules in 1994 neither ruled in or ruled out the need for a Court of Appeal appeal (whether in the aforegoing scenario or otherwise), but if there was a public interest to be served a common law natural justice appeal would I expect and hope be accepted. One must always remember that the actions of courts can be the subject of appeal, and quite rightly, because they can and occasionally do interpret and apply the law incorrectly.

 

Perhaps partly because of this moot point, Mynors (1st edition) mentions that the Civil Procedure Rules 1998 allowed appeals only if the High Court gives permission, thus satisfying the public interest aspect. As the 1st edition suggests, I believe this has been replaced by changes to the Rules of the Supreme Court. I haven't followed this up, sincerely hoping never to need to know the nitty gritty.

 

And back to the beginning, the Court of Session in Scotland is the statutory court of appeal in the first instance but may (in the inner house) also take a natural justice appeal of the type I am referring to or any other breach of natural justice or the questioning of the validity of an appeal decision in the outer house.  Clear as mud!

 

In noted in passing an error in the english Regulations, Regulation 8(a)(iii) refers to s.284(a), I think it should be s.284(1). Just goes to show, even statutory laws can be flawed.

 

So, a TPO could be challenged after the 6 weeks, if the High Court (or Court of Session?) was unsure of its interpretation, or if the Order had not been served correctly.

Edited November 3, 2017 by daltontrees

[Mick Dempsey]

So this is where the fun is?

 

Really great thread, props to all. (Especially to Edward C, the man’s a machine)

[Mark Bolam]

Is it worth the risk?

There are plenty of trees out there without TPO's that need felling.

You can even get paid for some of them.

[skyhuck]

59 minutes ago, Mark Bolam said:

Is it worth the risk?

There are plenty of trees out there without TPO's that need felling.

You can even get paid for some of them.

Disappointed in you Mark  

 

Surely your axe needs grinding just as much as mine 

[Mark Bolam]

More like I don't need another criminal record....

[daltontrees]

The law doesn't begin and end with the High Court and s.284., and with England. I am certain that the superior courts would take a case that had sufficient prima facie prejudice and ultra vires. The cases you cite pre-date the latest court rules, but that's stil not the point. It would not be in society's iterest to allow a situation to arise where someone has surrered loss beccause a staturory body has wilfully or negligently failed to exercise its powers correctly. The law never stands still. Denning was famous for being unhappy about the inadequacies of law, and often codified law in written judgements. He virtually wrote the law of CPO compensation single handedly, and in my former life as a surveyor I held his written judgemnets as the clearest and most logical deerivations of scant and often inadequate statute. His rantings in case law are partly what triggered the current statutory position for judicial review. But I bet if Denning was still around he'd now caveat his previous position along the lines of what I've said above. The remedy (or even the action) might not be to have a TPO set aside, but the wronged owner would get some kind of redress. Your 6 weeks is not the end of it. It's just the end of the High Court. In England. For now.

 

I could have got by without your last paragraph, but now that you mention it, when statutes contain mistakes, who plugs the gaps? The courts. They are reluctant to interfere with the exercise of statutory discretion, but they never stand by when potentially endemic unfairness emerges. Thus the judiciary is actively involved in helping and making the law evolve. I have more faith in them than I have in Parliament.

[iptable]

On 11/1/2017 at 19:46, Gary Prentice said:

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

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