Implied TPO in Conservation Area

[john87]

24 minutes ago, Treerover said:

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 ?

I know precisely NOTHING about TPO's but if the law is that you lodge an application and the council have 6 weeks from the date you lodged the thing to object or say no [i have no idea how it works] then, once the time limit is up crack on.. Nothing they could do, as no basis in law, so they could hardly sue you..

If it is 6 weeks FROM the date of receipt, then i would say; "today" [monday] you took it in. Tuesday .......... then six weeks till that Tuesday. Nothing?? Wednesday cut tree. In other words, you need to make sure a CLEAR 6 weeks have elapsed...

 

If it were me doing that sort of thing and lodging "notices" i would not post them but physically take them there and get a signed receipt..

 

john..

[Paul in the woods]

Thanks for the reply. I can see with this example it's fairly straight forward, 8 weeks aren't 6. I understand and agree with most of what you say.

 

In my case I did follow the complaints process and the monitoring officer was involved from an early stage but seemed to be advising the council staff how to best mislead me and get out of their obligations (I submitted a subject access request so saw some of their internal emails). I went to the LGSCO because I found an example very similar to my case where they found against the council. In my case they did not provide any procedure they followed. However, the LGSCO still could not be bothered to investigate.

 

I have a suspicion councils have been advised to refer people to the LGSCO much more quickly these days and the LGSCO just dismisses most of the referals.

[kevinjohnsonmbe]

46 minutes ago, Treerover said:

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 ?

If it has not been TPOd, 6 weeks and a day after the submission of a valid s211 notice,

 

It shall be a defence for a person charged with an offence under subsection (1) to prove—

 

(a)that he served notice of his intention to do the act in question (with sufficient particulars to identify the tree) on the local planning authority in whose area the tree is or was situated;

[john87]

40 minutes ago, Paul in the woods said:

Thanks for the reply. I can see with this example it's fairly straight forward, 8 weeks aren't 6. I understand and agree with most of what you say.

 

In my case I did follow the complaints process and the monitoring officer was involved from an early stage but seemed to be advising the council staff how to best mislead me and get out of their obligations (I submitted a subject access request so saw some of their internal emails). I went to the LGSCO because I found an example very similar to my case where they found against the council. In my case they did not provide any procedure they followed. However, the LGSCO still could not be bothered to investigate.

 

I have a suspicion councils have been advised to refer people to the LGSCO much more quickly these days and the LGSCO just dismisses most of the referals.

As the councils know that the ombudsman is not interested in what DECISION a council reached, only that they followed proper procedure in REACHING that decision, and it was not "unreasonable" etc, that they can send people there, knowing that the ombudsman will rule that it is not something he can deal with. The poor person will then try to start again, only to find out that the rule that you cannot complain about the same thing twice will be invoked..

 

You CAN complain about a decision using the complaints procedure, but you CANNOT go to the ombudsman because you do not like the decision that was made.. You can ONLY go to the ombudsman if the correct procedure in REACHING the decision was not followed in which case the ombudsman will find "maladminstration" and tell them to re-take the decision in the proper manner. The council will then HAVE to do this, but may well reach the same decision the second time. It is the way the decision was reached that matters, NOT what the decision was..

 

The entire thing is all as clear as mud and the council have vast experience at doing this..

 

I take it your complaint was nothing to do with trees.. social care??

 

john..

[Paul in the woods]

18 minutes ago, john87 said:

I take it your complaint was nothing to do with trees.. social care??

No, refuse. And as I mentioned the council could not provide any procedure they followed but the ombudsman didn't seem bothered by this. One of the reasons to go to the LGSCO was to understand the process but as you say it's clear as mud.

 

When my county council damaged (killed) one of my trees they basically did nothing and refered me to the LGSCO. I replied it wasn't in their remit but heard nothing back.

Edited November 1, 2021 by Paul in the woods

[kevinjohnsonmbe]

1 hour ago, john87 said:.

 

The entire thing is all as clear as mud and the council have vast experience at doing this..

 

1 hour ago, Paul in the woods said:

No, refuse. And as I mentioned the council could not provide any procedure they followed but the ombudsman didn't seem bothered by this. One of the reasons to go to the LGSCO was to understand the process but as you say it's clear as mud.

It’s a process designed by civil servants to entirely satisfy the gravy train of non-jobs and unaccountability for civil servants!

 

🤯

[john87]

21 hours ago, Paul in the woods said:

No, refuse. And as I mentioned the council could not provide any procedure they followed but the ombudsman didn't seem bothered by this. One of the reasons to go to the LGSCO was to understand the process but as you say it's clear as mud.

 

When my county council damaged (killed) one of my trees they basically did nothing and refered me to the LGSCO. I replied it wasn't in their remit but heard nothing back.

I am no lawyer, but i do have a lot of experience with arguing with councils!! Now, the problem is, the ombudsman is there to sort out procedural errors not legal matters such as civil torts which is what damage to a tree would be, "trespass to property"

 

I could have told you that the ombudsman would not be interested in this, and it was wrong of the council to suggest this, UNLESS, you have come to the end of their formal complaints procedure, in which case the next step COULD be the ombudsman who would look to see if the complaints procedure had been carried out properly, and NOT, what its conclusions were..

 

What you SHOULD have done, is gone to the small claims court. HOWEVER, i can tell you that the courts usually want to see evidence of an attempt at "ADR" "alternative dispute resolution" [which can take various forms]

The idea is that the two parties need to show that thay have made attempts to resolve the problem BEFORE resorting to the courts.

 

Happily for you, you can now show that you have made every effort to resolve this in that you HAVE tried "ADR" in that you have tried the complaints procedure and the council MO and the ombudsman, all to no avail and that now you have no choice other than to resort to the courts..

 

So, as long as the date of "actionable cause" [the damaging of the tree] was not more than 6 years ago, you should be good to go!! You can do this by going to "moneyclaim.gov.uk"

 

Bear in mind though that you will have to prove your case to the civil standard of "on the balance of probabilities" so you will need some sort of expert witness to testify on your behalf..

 

john..

 

 

[Paul in the woods]

I'm now resonably aware of the system but that doesn't stop the council wrongly telling me to go to the LGSCO as they know full well the vast majority of people will not bother. Therefore I would state the LGSCO is not there to help the public but to give the councils a scapegoat that is next to useless in most cases.

 

As for the small claims court I received some free advice from an experieced solicitor years ago which was basically he's seen cases won that he was sure would lose and vica-versa. Not quite a lottery but faced with an organisation that's very experienced with fighting claims it's would not be an easy fight. I am reasonably familiar with the process as well, letter before action, offering mediation etc, etc.

 

To go back to this thread's question, I can't see the LGSCO doing anything about the council asking for 8 weeks rather than 6. I'd love to be proved wrong if someone has the time.

[john87]

5 minutes ago, Paul in the woods said:

I'm now resonably aware of the system but that doesn't stop the council wrongly telling me to go to the LGSCO as they know full well the vast majority of people will not bother. Therefore I would state the LGSCO is not there to help the public but to give the councils a scapegoat that is next to useless in most cases.

 

As for the small claims court I received some free advice from an experieced solicitor years ago which was basically he's seen cases won that he was sure would lose and vica-versa. Not quite a lottery but faced with an organisation that's very experienced with fighting claims it's would not be an easy fight. I am reasonably familiar with the process as well, letter before action, offering mediation etc, etc.

 

To go back to this thread's question, I can't see the LGSCO doing anything about the council asking for 8 weeks rather than 6. I'd love to be proved wrong if someone has the time.

The question would not arise, as after 6 weeks they would cut the tree down and it would be the councils problem then.. Anyone in that position would be nuts to launch complaints as it would drag on for ages if not years and there would be no need, the 6 weeks specified in the legislation would have elapsed and that would be the end of the problem..

 

john..

[daltontrees]

2 hours ago, john87 said:

The question would not arise, as after 6 weeks they would cut the tree down and it would be the councils problem then.. Anyone in that position would be nuts to launch complaints as it would drag on for ages if not years and there would be no need, the 6 weeks specified in the legislation would have elapsed and that would be the end of the problem..

 

john..

Indeed, why complain except to help the next guy? If you are within rights to remove tree, do it and let the Council decide whther it should try and do anyhting about it. Its legal dept will probably close the file at that point.