Implied TPO in Conservation Area

[daltontrees]

The Council is entitled to say that it would like lesser works than the notified ones, But it can't insist, all it can do either expressly or hinted at is to threaten to put a TPO on unless you agree. Sometimes this is bluff, sometimes ignorance, sometimes real. But if your bluff is not called by a TPO within 6 weeks, you can go ahead and remove the tree. But remember, the Council can make a TPO after the 6 weeks but before removal and it trumps the notice.

[AHPP]

Ok. I am not sure i can because of the way it is formatted as a word document. But i will have a go together with some other stuff too. It was all written, not by me, but by a barrister in relation to social services, so you will find a few references to this in the written stuff. However, i have used this process myself in relation to various things and it works like a dream.!!
 
 
 
1, The monitoring officer HAS to take your allegation of unlawfulness, not even that, SUSPECTED unlawfulness, and decide whether of not your allegation is made out or not..
 
2, They HAVE to give you written detailed reasons for their decision, they cannot just say, "do not agree" or ignore you..
 
3, They CANNOT tell you to use the council complaints procedure instead, as the complaints procedure is not intended to decide on points of law.
 
4, The MO is impartial [or should be] and the very fact that you have gone to them will concentrate their minds no end as they will be more than a little unsettled that you even know of their existance.
 
5, The MO knows that next stop is the ombudsman, and given that the MO has a legal DUTY to decide on points of law and explain his reasoning for his decision, means that he does not want to be explaining himself in front of an ombudsman in the event that he decides to "overlook" the law himself...
 
I will see if i can attach the stuff now, but, if it does not work, if anyone messages me i will email it all to them direct.
 
Hope this helps..
 
john..
1, List of monitoring officers.docx 2, What is this ‘Monitoring officer’ information for...docx 3, The Monitoring Officer's Role.docx

Thank you very much indeed.

[daltontrees]

On 30/10/2021 at 07:35, Gray git said:

We have had this similar situation a few times with the difference both councils don't actually have tree offices and it's just a planning officer dealing with it.
Basically they have used it a a way to get what they want without having to justify or back up why.
Some context, both trees Ash, both limited access, both with ash dieback, both fairly prominent visible tree's.
Neither officer wanted the trees gone but couldn't justify placing a tpo on them because should they then fail and cause damage due to reasons stated they could have a claim placed against them because to place a tpo the tree must be viable (someone might help me out here with the exact wording)' for a decent amount of time.
So they used the threat of placing a tpo as leverage to have the CA notification withdrawn and changed to what they wanted, both times I politely refused and 3 weeks later was removing the trees before they become to much of a risk to ourselves to safely work on.

I don't think this is quite right. If a TPO is made to stop removal of a dodgy tree, the Council is not liable for damage. It only becomes liable after a subsequent TPO application is refused AND if the application made it clear that the damage was foreseeable. There's another twist too. If the damage was so foreseeable that it was serious and imminent, the Council would not be liable because the risk reduction works could have been (and therefore should have been) done under exemption.

But in general yes, Councils usually know and sometimes should be reminded that their refusals do not come without risk to them.

[Treerover]

The Council is entitled to say that it would like lesser works than the notified ones, But it can't insist, all it can do either expressly or hinted at is to threaten to put a TPO on unless you agree. Sometimes this is bluff, sometimes ignorance, sometimes real. But if your bluff is not called by a TPO within 6 weeks, you can go ahead and remove the tree. But remember, the Council can make a TPO after the 6 weeks but before removal and it trumps the notice.

This is absolutely the most succinct advice that underlines what I’d thought but wasn’t sure of or prepared to ‘wing’ .
Thank you very much indeed

[Canal Navvy]

Looks like Gloucestershire are still on the need to know principal 😔

 

Might be something to do with the other half working from home ... possibly 🤭

 

 

Edited October 31, 2021 by Canal Navvy
Trying to be diplomatic

[kevinjohnsonmbe]

11 hours ago, john87 said:

Every council has a person appointed as a "monitoring officer" They are a solicitor and they have a legal PERSONAL duty to make sure that the council obey the law. In fact, they are protected by law, so that the council cannot sue THEM, if they try to enforce the law [which the council is seeking to ignore]

 

If any tree officers or anyone else tries making the law up as they go along, such as the eight week extension mentioned above, the monitoring officer will soon sort that out..

 

You see, there IS a council complaints procedure, but it is very slow and you will NEVER win, but, the complaints procedure is not intended to deal with points of law, that is the remit of the monitoring officer.

 

Once you have made a referral to them alleging that a council is not obeying the law, they have to decide whether your allegation is made out or not. If they say it is, then you win, if they come up with a load of rubbish, you can then go straight to the ombudsman, [where you will win] and best of all, it is all free!!

 

So, next time a council acts in an "ultra vires" [it means "above the law"] a quick email to the monitoring officer will sort that one..

 

I have a list here of every monitoring officer in the country if anyone is interested..

 

john..

The c*nt in Cornwall ain’t worth 2 tosses.... Believe me, I know 😂

[john87]

18 minutes ago, kevinjohnsonmbe said:

The c*nt in Cornwall ain’t worth 2 tosses.... Believe me, I know 😂

Go straight to the ombudsman then. Remember the MO has a legal duty and to fail in that is classed as "maladministration" at the very least, and the ombudsman take a very dim view of that..

 

john..

[Paul in the woods]

7 hours ago, john87 said:

Go straight to the ombudsman then. Remember the MO has a legal duty and to fail in that is classed as "maladministration" at the very least, and the ombudsman take a very dim view of that..

 

john..

Have you taken complaints to the LGSCO then and won? Did the council change and did you get much compensation to cover your time?

 

I've only taken one complaint to them and after careful consideration they declined to investigate. It then emerged they had not actually read my complaint (they admitted this but said it was perfectly fine to do this).

 

After a bit of research into them there I found a survey that said about 90% of people were dissatisfied with their service. There is very little they will investigate, for example if you can take the council to court then they will not investigate your case and you need to suffer "significant injustice". Even when they uphold a complaint they don't seem to do much. What I have noticed over the last couple of years is that our concil does even less to resolve any issue and simply refers you to the LGSCO.

 

The only useful thing about them is that they do publish decisions so people can search them: https://www.lgo.org.uk/decisions

 

[Treerover]

So as we’re up to the line on the 6 weeks and want to remove the tree straight away……the validation date is Wednesday 22nd September, does this mean we are ok to fell it on Wednesday 03rd November or do we have to wait until Thursday 04th , which in my book is 6 weeks and 1 day ?

[john87]

2 hours ago, Paul in the woods said:

Have you taken complaints to the LGSCO then and won? Did the council change and did you get much compensation to cover your time?

 

I've only taken one complaint to them and after careful consideration they declined to investigate. It then emerged they had not actually read my complaint (they admitted this but said it was perfectly fine to do this).

 

After a bit of research into them there I found a survey that said about 90% of people were dissatisfied with their service. There is very little they will investigate, for example if you can take the council to court then they will not investigate your case and you need to suffer "significant injustice". Even when they uphold a complaint they don't seem to do much. What I have noticed over the last couple of years is that our concil does even less to resolve any issue and simply refers you to the LGSCO.

 

The only useful thing about them is that they do publish decisions so people can search them: https://www.lgo.org.uk/decisions

 

What the council do is all part of their "game plan" They do this every day and use the experience they have to make things as hard as possible for you. I did not have to go to the ombudsman, the council caved in long before that. I cost them tens of thousands of pounds once [at the outset] and then MUCH MUCH more over the years that followed, and got EXACTLY what i wanted. I went down the complaint route with that one, and they got an external investigator. Despite them all colluding together as a team to blatantly lie to the investigator i STILL won..

 

Now, the thing with the ombudsman is, they will NOT investigate UNLESS you have exhausted the complaints procedure first, this is why they decline to investigate [usually]

 

Secondly, i do not think the ombudsman will investigate points of law anyway, that is a matter for the courts..

 

Thirdly, points of law do not fall to the complaints procedure anyway, it is outside their remit. Not saying they will not investigate, they will, but just to mess you about, lead you down a blind alley, and try to wear you down. If you have the energy, you can then go to the ombudsman, but you will find that they are not interested in what the council did, so long as what the council did, was done properly. What i mean is, if the council followed procedure, but you did not like the outcome, too bad.. If however the council did NOT do things properly, the ombudsman will make them redo it, but they [the council] may still reach the same conclusion and there is nothing you can do about that.. If your complaint regarded points of law, you may well find the ombudsman says it is outside their remit too..

 

The council know all this and will use their knowledge to mess you about..

 

So, where do you go??

 

The subject of all this, was stuff surrounding TPO's, that had no basis in law. So, you have two choices, a judicial review, but in the past you would not get one of them on legal aid unless you had exhausted every other avenue anyway, and, legal aid has stopped anyway unless you are an illegal immigrant.. [so far as i know] If you chose to pay yourself it would be about £20,000 and what if you lose??

 

So, the best way is the monitoring officer.. If then they will not help, you go to the ombudsman, NOT with your complaint, or point of law, but alleging "maladministration" which the ombudsman WILL be interested in.

 

You also need to jump on the council at the earliest opportunity, as the more complicated things get, the harder it will be for you..

 

You need to be able to keep things simple.. Council say they have awarded themselves another 8 weeks, straight to the MO. He will have to say it is unlawful, you cut the tree down. He refuses to act, you go off to the ombudsman with the MO's report and the act in question and you win. [it would be maladministration] I would go to the law society then and complain about the actions of the MO as he is a solicitor and has to act in a professional manner..

 

john..