One for the T.O.'s and any other boffs!

[18 stoner]

Scenario;

 

Notification of intended works put in to fell S. Birch. Contractor fills in app as "agent" for client.

 

Acknowledgement is issued to both parties with proceed date.

 

Following proceed date tree is felled by contractor, with no communication from T.O. or client prior to works.

 

Contractor later finds out tree had been TPO'd but only informed client, not contractor.

 

How do we stand now?

[Amelanchier]

Is this one of those "Doctor, my friend has a strange growth..." situations?

 

Well, the client has alomost certainly committed an offence in allowing the contractor to fell the protected tree. He/she was in possession of all the facts and deliberately or negligently "caused or permitted" the work to continue - not good for him/her.

 

However, not knowing about the TPO is no defence I'm afraid (the law expects a people to check these things for precisely this reason) - therefore it appears an offence has been committed by the contractor also. There's no requirement for the LPA to serve/inform an interested contractor with details of the TPO, whilst you might expect it as good practice the requirements extend only to owners and occupiers.

 

The rest depends on a whole bunch of stuff like the value of the tree, the contractors relationships with the client and the TO, the attitude of the LPA enforcement/legal dept, the money available for representation, willingness of either party to accept cautions or the side of the bed the magistrate got up on.

[18 stoner]

Many thanks for your reply Tony, I was hoping you would be along at some point.

 

Is this one of those "Doctor, my friend has a strange growth..." situations?

 

As it happens the tree has not been felled, hence why i put "scenario":thumbup1:

 

However, it almost was. The client has been away for some time and left the project to me before he went away. Hence why I was acting as his "agent".

 

Purely by chance I rang the client yesterday to see if he was back home, and would be around today when we intended to take the tree down. He was, and informed me he had just found the TPO notice in his stack of mail.

 

However, not knowing about the TPO is no defence I'm afraid (the law expects a people to check these things for precisely this reason) - therefore it appears an offence has been committed by the contractor also. There's no requirement for the LPA to serve/inform an interested contractor with details of the TPO, whilst you might expect it as good practice the requirements extend only to owners and occupiers.

 

I appreciate your feedback very much Tony so please dont take personal offence from this, but the above quote is out of order!

 

I do realise the reasons for checking first, hence why I went through, what I thought was the correct proceedure. I checked protection status, gave notification of intended works for Cons. area works, to which I have a reply clearly stating, and i quote; "If by the 16.09.2010 you do not hear from us, you may carry out the works within two years of the date I received your letter". I then heard no more.

 

I feel I did everything within my knowledge and capability to proceed correctly, but if it weren't for the slight chance of me finding out about the TPO, I could have been fined. Rediculous!

Edited November 25, 2010 by 18 stoner
Added a bit

[likeitorlumpit]

Been in that position myself

Getting the letter stating 'if you do not hear by.......' really leaves the whole thing in the air as letters can and do get lost- Really you have no proof that you did not receive the letter. Similarly they have no proof that you did as they are not sent recorded delivery.

Surely this leaves the responsible contractor with only one option- to e mail the tree dept. and get verification that it is OK to fell.

Surely it would be better if TO said 'wait till you hear from us- it will be within the next x weeks'

[Amelanchier]

...the above quote is out of order!

 

I do realise the reasons for checking first, hence why I went through, what I thought was the correct proceedure. I checked protection status, gave notification of intended works for Cons. area works, to which I have a reply clearly stating, and i quote; "If by the 16.09.2010 you do not hear from us, you may carry out the works within two years of the date I received your letter". I then heard no more.

 

I feel I did everything within my knowledge and capability to proceed correctly, but if it weren't for the slight chance of me finding out about the TPO, I could have been fined. Rediculous!

 

I wasn't indicating that you (or the contractor in the scenario) had done anything stupid, merely outlining the objective position of the law and its precedents. If they've made a written commitment to you as the notifier then I would expect them to fulfil it. I'd suggest that would be a strong part of a reasonable defence of your position.

 

Whether the situation is morally wrong (or out of order) is a different issue - the game is certainly rigged in favour of the LPA. Is it frustrating? Does that advantage get abused? Can the admin errors of a LPA result in serious consequences for the individual? Yes, but you asked!

 

At the risk of outraging you further - I can imagine the contactor in your original scenario being asked before the bench; "So before you put the felling cuts in, why didn't you just call the department to see if there had been any change in the trees protection?".

 

I know the answer ('cos I didn't want to spend a hour of my life on hold or wait for the TO to come back off leave, etc), but it would be a tricky situation to be in and even harder to justify under that pressure. An Order might have been served for a completely seperate reason...

Edited November 25, 2010 by Amelanchier

[18 stoner]

Many thanks for that Tony, much appreciated.

 

As it happens I have had many issues with this particular council when it comes to applications. I deal with them on approximately 10% of the protected work I do, all the rest is with one more council, where i never have any problems. To date, every application I have put in with this council has been either refused, returned, requested more information, extra photos, etc, etc.

 

As for part two of the thread, I wonder if you wish to comment also Tony?

 

I realise its not in your area and without seeing all associated details its hard to tell, but this particular application was put in due to subsidence to a garage and wall within 1.2m of the tree. The tree is in the rear garden of the property, and out of site from any public area. In my opinion, low amenity value.

 

The damage to the building has been caused in the last year and some works have been carried out to repair it. The builder supplied a report saying in his opinion it was as a result of the tree, and with my own comments and opinion supplied his report with the notification. There are no other trees within 20meters of the garage, and the garage is in excess of 40 years old.

 

The reasons I got from the client last night as for issuing the TPO, was someone from the "planning department" with no arb qualifications said there was no way the tree could have caused the damage:confused1:

 

So if you dont mind Tony, what is the correct proceedure from here to lodge an appeal, and do you think its worth trying to take it further?

 

P.S, the tree has had a 6 month "temporary TPO" put in place.

[Amelanchier]

Its always worth taking it further. Pretty much the whole mechanism expects you to if you have a real issue!

 

First step - make an objection within the 28 day window. The LPA are minded to discuss your reasons for doing so before they can make the Order permanent (confirm it). They will often defer the decision to a panel of councillors.

 

Secondly, put an application together to fell the tree supported by the evidence that you have. Logically the LPA will refuse it and you can appeal to the Planning Inspectorate. This will save you valuable time in the long run should the TPO be confirmed. With some LPAs you may even get a decision from the application appeal before the TPO objection is heard!

[18 stoner]

Many thanks Tony, this is all new ground for me!

 

I dare say the client will want to take it further, the only thing i notice from what you have said above, is that a couple of months have now passed (beyond the 28 days) so may make it slightly harder.

 

Many thanks again for straight forward info.

 

Pete.

[redmoosefaction]

I think the "we shall inform you.." phrase really puts the onus on the councils legal department. Yeah I know your going to say ignorance is no defence.

 

We have started having TPO orders by signed recorded delivery now, sent to us from the legal departments, as the agents.

 

Why would they leave you out when you made the application? bizarre, but that's councils for you!