Tricky TPO situation

[openspaceman]

1 hour ago, EdwardC said:

So tomorrow is; let the chucks out, then hit the fells. Now that's a proposal.

I wish I were close enough to join you

[Stubby]

14 hours ago, kevinjohnsonmbe said:

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!

 

 

Its up there with the  " towing regs " one !

Edited November 10, 2017 by Stubby

[Jon Heuch]

13 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. t

 

Well Robert, my advice to you is this: if you want to understand the law you firstly have to know what the law is.

 

s.199.......you probably want to start at the Planning Act 2008 s 192(3)........s.199 evaporated then and came into law with the 2012 Regs

s.201....Planning Act 2008 s 192(4)......the same

 

So you need to look at Part 2 of the 2012 Regs to work out how the system changed. It is annoying that the legislation.gov.uk website provides access to clauses which are longer valid but if you open up the options under "Changes to legislation" the situation becomes a little clearer. It should make your head hurt less!

[iptable]

On 11/10/2017 at 10:52, Jon Heuch said:

Well Robert, my advice to you is this: if you want to understand the law you firstly have to know what the law is.

Hi Jon, no need to get rude about this. I have checked the relevant parts and was quoting the TCPA 1990, s201 and s198. See all my posts on this, and yes, I have checked the relevant regulations from 1990 (for which the TCPA was quoted as made) onwards to 2002, when the TPO was made. I do know what law is, so does a solicitor I was consulting. I also didn't say my head hurt now, did I?

 

EdwardC et all, I have received official confirmation from legal team at the council, which pretty much confirms we are all correct.

 

Essentially, in a nutshell, they said that the TCPA1990 was unclear, i.e. it could be interpreted either way. Hence the 2012 regulations fixed this (to what it should have been, although they didn't use those words for ... well .. legal reasons) by making it clear how it is to be interpreted. Unfortunately, since the TCPA1990 was in force during this time, the "unclear" regulations were still in force. The gov interpreted the regulations, as you would expect, in a way that suited them. But, in writing, they confirmed it can be interpreted either way realistically due to a wording issue that shouldn't have been passed as law without a proper review.

 

This means, in legal terms, that should a case go to court, one would have a coin-toss (50/50) chance of winning - making this a rather lousy chance to go on.

 

So, we were all correct on this one, although the advise would be "do not cut the trees down without having the exception for your works sanctioned by the council".

 

Should we put this thread to rest on this?

 

Kind Regards,

 

Robert

 

[Stubby]

20 minutes ago, EdwardC said:

I agree it should go to bed, but...

They are wrong, we are not all correct.

 

If that's in respect of s201it's ignoring the fact that s201 related to a direction attached to the Order. It was the direction that is time limited, not the Order. But that is irrelevant.

 

If you are suggesting that the TPO is not valid and you could win the case on the basis that the TCPA s201 could be interpreted more than one way you're just plain wrong for the following reasons.

 

1. The TPO was confirmed, (we can agree on that), and;
2. The TPO wasn't, and can't now be, challenged in any legal proceedings whatsoever, no matter what. As set out in the legislation, and as per the precedents set by the Courts, and according to the leading QC formerly dealing with the law of trees, forests and hedgerows, who has written the two seminal books on the law of trees, forests and hedgerows, titled The Law of Trees, Forests and Hedgerows.

No 50:50, no lack of clarity, it's not open to interpretation.

 

The TPO is valid. And that's an end to it.

 

Boing went Zebedee's spring

Watch out for Mr McHenry .........

[Gary Prentice]

Since this isn't being put to bed quite just yet...

 

I'd be a little careful taking too much advice from LA legal departments regarding their interpretation and opinions on legislation. The only person who will decide what the law actually means will be the learned gentleman in the wig, should the LA (in their opinion) decide that you've contravened a TPO. 

 

I stand to be corrected, but I imagine that the 2012 changes were a lot more to do with LAs confirming TPOs years after serving the s201 and preventing 'interesting parties' making objections/representations (in the spirit of the act) than any ambiguity in the understanding of that particular section.

 

As an aside. Has anybody ever attempted to defend a charge of contravention (pre 2012) because the order wasn't confirmed within 6 months but confirmed later?

[iptable]

44 minutes ago, Gary Prentice said:

Since this isn't being put to bed quite just yet...

 

I'd be a little careful taking too much advice from LA legal departments regarding their interpretation and opinions on legislation. The only person who will decide what the law actually means will be the learned gentleman in the wig, should the LA (in their opinion) decide that you've contravened a TPO. 

 

I stand to be corrected, but I imagine that the 2012 changes were a lot more to do with LAs confirming TPOs years after serving the s201 and preventing 'interesting parties' making objections/representations (in the spirit of the act) than any ambiguity in the understanding of that particular section.

 

As an aside. Has anybody ever attempted to defend a charge of contravention (pre 2012) because the order wasn't confirmed within 6 months but confirmed later?

Hi Gary,

 

Not sure. They might have. These don't have to go on public record, so hard to find out without contacting local courts under the freedom of information act, which I can't be bothered with right now.

 

EdwardsC, if one cuts trees down, then one is taken to court where one can defend their actions. So yes, it would go to court, as per proceedings requirements before a fine can be issued in this case. And yes, one could then argue the validity.

 

The reason why s201 was rewritten is for that very reason. Because it was unclear and left open to interpretation. We could stop arguing now you know. They didn't rewrite it for fun.

 

Kind Regards,

 

Robert

 

[Gary Prentice]

Sorry Ed, it's been a long day - it would be a pointless defence.

[Adam M]

via Imgflip Meme Generator

[iptable]

53 minutes ago, EdwardC said:

Only another 499 lines to go. I must be nearly there.

So that was your experience whereas mine was that a solicitor agreed on the council side that it's unclear so they read it their way. Can you give it a rest? I have 3 solicitors now look into this, one says what you say, one say what I say and council one say it's cause it was simply badly written. I'm putting this to rest. "Perpetrator" means you work for the council by any chance trying to protect their interest...? Just saying. I'm off this thread, starting to get abuse is not a good thing.