Confirmed TPO

[daltontrees]

1 minute ago, Gary Prentice said:

Does that mean that they would be unable to prosecute contraventions of pre-1996 TPO's?

I've put the Council on notice to that effect, but mainly to incentivise it to get its act (or should that be Act) together. On the basis of Jo Heuch's pertinent observation that no copy of confirmed TPO means no enforcement, that could be right. On the other hand, the Council may have confirmend and recorded the TPOs but can't or won't get a copy form Sasines unless it is contemplating a prosecution. So what I have done instead is told the Council that if I or a client try to find out if there is a TPO on a tree only by visiting the Council office and asking to see the register, then no register entry means no enforceable TPO. I think there is some allusion to this defence in Mynors.

[Jon Heuch]

On 17/05/2019 at 11:33, daltontrees said:

…..asking to see the register, then no register entry means no enforceable TPO. I think there is some allusion to this defence in Mynors.

Ah....the "register"! I haven't checked on Scottish matters to see how differently the Register issue is, but I am unaware of any English council keeping a "register" as defined in the law. I have seen a few old TPOs keeping a handwritten record but most councils will point you to their on line database of planning applications.....which don't allow any searching via the TPO, merely by an address. Some time ago I heard a few tree officers saying no-one had ever asked to see their "register" - there is meant to be one for each TPO.

So does anyone know of a council that does keep a "register".....? That might be available for public viewing?

[daltontrees]

1 hour ago, Jon Heuch said:

Ah....the "register"! I haven't checked on Scottish matters to see how differently the Register issue is, but I am unaware of any English council keeping a "register" as defined in the law. I have seen a few old TPOs keeping a handwritten record but most councils will point you to their on line database of planning applications.....which don't allow any searching via the TPO, merely by an address. Some time ago I heard a few tree officers saying no-one had ever asked to see their "register" - there is meant to be one for each TPO.

So does anyone know of a council that does keep a "register".....? That might be available for public viewing?

I recently visited Highland Council's offices and insisted on seeing a TPO. There wqs no Register, but they jumped thrugh hoops to get me the info. Eventually.

Ditto East Renfrewhsire. It doens't have a register.

There's a related issue, and it's importance varies between Scotland and England. Knowing the existence or even extent of a TPO is not enouhg, as the contents of Orders is not stnadard. Just to makr absoultely certain that no-one can assume what a TPo contains, the Scvottish Parliament revoked the Regulations that contained the TPO pro-forma, and replaced them with a Model Order which is not mandatory. 

Worse still, up here the exemptions are in the Act, not in the new Regs. England does it the other way around.

 

[Adam M]

This register,... Could that simply be the planning admin system of choice? If not, what would it look like? What should the headings be?

[daltontrees]

2 hours ago, EdwardC said:

The register...There is no prescribed format as far as I am aware. Nor a requirement to have a separate register for each individual TPO, or one searchable in any particular way although being able to search by way of TPO ref. would seem sensible.

 

Interestingly there seems no requirement to have a register listing all the Council's TPO's, date made, date confirmed, modified, varied, revoked etc. On that basis a TPO not being on the register wouldn't seem to be a particularly strong defence to a prosecution.

Yes we are mixing terminology for two related things (i) All confirmed TPOs must be kept available for inspection (but not necessarily inthe form of a 'register' (ii) All TPO applications must be available for inspection in a public register.

So to clarify my ealrier comments, I mean that the non-availability of a TPO for inspection, free of charge,
at all reasonable hours, at the offices of the planning authority by whom the tree preservation order
was made, is a breach of Regulations, both sides of the border, and that Mynors alludes to this being a defence against prosecution.

[Jon Heuch]

3 hours ago, EdwardC said:

The register...There is no prescribed format as far as I am aware. Nor a requirement to have a separate register for each individual TPO, or one searchable in any particular way although being able to search by way of TPO ref. would seem sensible.

As to the contents/headings in the register https://www.legislation.gov.uk/uksi/2012/605/regulation/12/made 

The regulations 12 (1)(a) and 12(1)(b) use the phrase "under an order"; the required register is not just a list of tree work applications. Clearly 99% of people are only interested in trees on their or their clients property and being able to search by property is essential.....but with larger & older orders covering multiple properties, especially where there is a dispute, it's highly desirable to look at the management of the order as a whole & in the round.....if the council has allowed trees to be felled as part of the order but is not allowing my tree to be felled there is an argument to be made that there is inconsistency and unfairness involved...…..but arboriculture on the whole is stuck in the management of individual trees or small groups of trees so it's clear why this type of issue hasn't been raised much in the past.

Before 2012 for older orders the register (and remember this requirement was described in the order, not in the regulations) had to include all details of compensation paid. It would have been an interesting exercise to collate just how much councils had paid up......but I doubt any councils kept that record for public viewing.....no-one asked for the information....& it's not required any more so it will be a difficult exercise to drag out of any councils in the future.....I have seen a few FoI requests for this type of info & there are various reasons why it can be withheld.

[Chris at eden]

On ‎15‎/‎05‎/‎2019 at 17:51, EdwardC said:

Always?

Yes always, or as far as I can check and is relevant to PINS appeals.  The oldest we have is 1976 and it is signed as confirmed at the bottom.  Sure the older ones were probably rubbish but that is why we review and get rid of the older ones, or that are inaccurate.  Its unacceptable in my opinion to have TPOs from the 50s that have no relevance today.  The resources argument is nonsense.  We have over 800 TPOs we still manage to review.  Its a winter job when the works apps are less demanding.   

 

Our biggest issue is that when the TPOs were originally entered to GIS they were not done in the correct detail so anything before 2010 doesn't have a confirmation date entered, well some do as I have entered them.  TPOs are confirmed but its not detailed on GIS.  I am working on it though.       

On ‎15‎/‎05‎/‎2019 at 17:51, EdwardC said:

Go back a few years to a time when all you needed was the Committee to agree the TPO should be confirmed, The Committee resolves TPO XXXX be confirmed, and letters sent to those with an interest to achieve that. "Be confirmed" is an instruction to an official to do the do. Do you have copies of the letters of confirmation that were sent 50 years ago. Sometimes the Minister confirmed TPO's, do you have the letter from the Minister. As I said, a lot of stuff has been lost over the decades. 

We don't have TPOs from 50 years ago, our oldest is 43 years old and it is signed and dated with the words 'confirmed on' written.  Hence we don't have an issue with supplying info to the PINS. 

On ‎15‎/‎05‎/‎2019 at 17:51, EdwardC said:

 

A file audit of your TPO's is likely to reveal a can of worms.

It does and has but we address them as we go along.  We are not perfect, we have area orders, GIS is not in the best shape that it could be, and we may well have some that aren't confirmed but we are working our way through it the best we can.   

[daltontrees]

Commendable tongue-biting!

 

I had a similar experience of local government, the closer to the top you get the more unbearable the stench of bullshit gets. The most you can hope for is muted respect for not becoming the patsy of members and Directors. I'd go as far as to say that doing your job right in local government makes you a liability for managment because thy can't use your name to legitimise their duplicitous actions.

 

I now have a good rapport (i think) with ex colleagues in that LA, and when they see that i am representing someone they know that what comes their way will have bene done properly and objectively. Reputation is sacred. I have turned down potential clients who wanted to use my reputation to support questionable proposals.

 

I recnetly had dealings for a client with a TPO in that LA's area. The LA doesn't have a copy of the TPO, cannot say whether it was ever confirmed. I know the folk concerned, and there's no point giving them a hard time about it. The resultant advice to client was pragmatic rather than literal. As is so often the case. We know right from wrong, but that's not in the real world.