Trade restriction?

[AA Teccie (Paul)]

Bearing in mind it's getting to my 'evening retirement time' (I think) I previoulsy recall an oMbudsman's decision being upheld where a LPA placed a condition on a TPO consent for an 'approved contractor' to be used (and maybe veen an AA AC.)

 

The ombudsman determined this was 'unreasonable' as, provided the standard of the work had been set (BS3998), then any contractor, or indeed the home owner himself, could have carried out the consented works to the said standards. That said I think, as a previous LPA, we both conditioned the standard for the work, i.e. BS3998/Euro Tree Pruning Guide AND where it was high level aerial work that a person expereinced and competent in that kind of work should be engaged.

 

Rupert, apologies if I've misunderstood or someone else has replied, but TPOs can be placed as i) indivdiuals, ii) groups, iii) areas (geographical), iv) woodlands or combinations of. Not all TPO trees are individuals.

 

We previously also issued 'Informatives' on CA responses regarding standards, i.e. BS3998, and expereinced / competent people. As you quite rightly say though they are clearly not enforceable BUT most people complied.

 

Thanks all.

paul

[felixthelogchopper]

It's worth mentioning that any restraint of trade is prima facie void and it is up to the party relying on it to show it is reasonable

[Amelanchier]

I think thats contract law though - the primary legislation for TPO conditions would be the TCPA - specifically section 198(3)(a);

 

"A tree preservation order may, in particular, make provision... ...for enabling that authority [the LPA] to give their consent subject to conditions.

 

To interpret that we'd have to look to guidance like the Blue book [my empahisis in bold];

 

"6.52 The legislation does not place restrictions on the LPA's power to impose conditions on a consent. But this does not mean the power is unlimited. In the Secretary of State's view conditions should always relate to the authorised work and be fair and reasonable in the circumstances of each case. In deciding whether or not a condition would be fair and reasonable in the circumstances the LPA should consider whether there is a definite need for it. Would the condition help tackle a specific problem? The argument that it would do no harm would not itself be sufficient justification for imposing it."

 

"6.59 The LPA may wish to use their powers to ensure that tree work or planting is carried out in accordance with good arboricultural practice. This may be done, where appropriate, by imposing a condition requiring compliance with the relevant current British Standard. The LPA should not, however, use such conditions without first considering whether they are relevant and reasonable in the particular circumstances of each case."

 

Whilst I was digging those refs out I found this (as predicted by Paul) which I kinda think is the last word!!

 

"6.54 LPAs should bear in mind that they are liable to pay compensation to any person who suffers loss or damage as a result of a grant of consent subject to conditions. In Deane v Bromley Borough Council for example, consent was granted to prune 26 trees subject to a condition that the work was carried out by an approved contractor. The Lands Tribunal accepted that the applicant could have carried out the work himself and awarded compensation based on the difference between the total cost of the contracted work and the costs he would have incurred by hiring equipment."

[tommer9]

I suspect that there has been a misunderstanding along the way here.

I dismantled a horse chestnut last sunday. I was approached by the owner on recommendation. The owner is a VERY ill elderly man and his wife. I went through the rough costing, which would have come to about £1800, most of which was road closure fees, my price only coming to about £600. I told them to contact their insurance to see if there was anyway it could be coverd.

The next day they received (coincidentally) a letter from Highways, explaining how a local tree officer had been driving past this tree which overhanged/ hung (?)a bus route on his way to work watching it die all summer and had advised highways of it. They had in turn written aforementioned letter, which stated that they should get the tree cut within 14 days or highways would do it and recoup the cost. They were also advised to ensure that they chose an insured contractor who was qualified and could do the road closure/ get it sorted, and that they ought to get a few quotes too.

Before they rang me and read me the letter, they were under the impression that they were to get an 'approved' contractor, simply because the 'council-speak' wording was not what they were used to. Once i had explained it as outlined above, they could see that they had the choice of who they wanted, and that the letter was just offering (and rightly so in my opinion) good guidance to ensure that works were carried out properly and safely and legally.

I could be wrong, but as i say, i suspect that this may have been the case here.