Hypothetical teaser

[Andy Clark]

The part of the quote in bold

 

 

Ahh, it doesn't show up as bold from what I see. Must be the Tapatalk app that doesn't show the editing.

 

Stoopid thing.

 

Sent from my BlackBerry 9700 using Tapatalk

[andrew]

Appreciated - here is the relevant part of s211

 

211 Preservation of trees in conservation areas..

 

1)Subject to the provisions of this section and section 212, any person who, in relation to a tree to which this section applies, does any act which might by virtue of section 198(3)(a) be prohibited by a tree preservation order shall be guilty of an offence. .

(2)Subject to section 212, this section applies to any tree in a conservation area in respect of which no tree preservation order is for the time being in force. .

(3)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; and .

(b)that he did the act in question— .

(i)with the consent of the local planning authority in whose area the tree is or was situated, or .

(ii)after the expiry of the period of six weeks from the date of the notice but before the expiry of the period of two years from that date.

 

I suspect a court might rule that the hypothetical notice was invalid, as Mr A clearly intended all along to remove a specifiec tree(s), and therefore the notice was not a reasonable representation of that intention ?

[Amelanchier]

Not necessarily.

 

For Person A to submit a blanket notification across an entire area, including trees that are outside of the remit of their own property boundary, I think it fair to assume that they had included neighboring properties with the neighboring landowners knowledge and consent..... Thus making Person A an agent.

 

Remember, courts look for reasonableness, as benchmarked against the actions of a "reasonable person". Would it be reasonable, as a TO, to assume the above? I think so. Because it would be unreasonable, conversely, for Person A to submit notification to fell someone else's trees without the knowledge and consent of the tree owner. .

 

In which case, I don't see that the DPA would come into effect, because you're not giving out "personal" info. You are responding, individually, to the respective property owners, regarding the actions of Person A, that you are reasonably assuming to be an agent acting on their behalf.

 

Thus it's only Person A that could even claim under the DPA, and as it's not necessarily "personal info" I don't see they would have grounds for a claim.

 

The flip side to that, if you're not going to assume he's acting as an agent, is to call their bluff, assume that it's vexatious, and only cover his property with the blanket order anyway.

 

But in the limited context of s211 there is no requirement for Person A to justify his ability to fell anything nor to confirm that he has obtained the agreement of the tree owners - just that he gives notice of his intentions.

 

What if Person A confirmed that he was not an agent for the tree owners at the time of notification but that he reserved the right to approach them in the future. Two years is a long time - I can't see that the LPA has any discretion on the matter.

Edited January 9, 2013 by Amelanchier

[daltontrees]

The courts would not have to questions the motives behind As notice, it is either a valid notice or it is not. For the reason I gave it is definitelty not valid. Proceeding to fell any big trees would then be an offence.

[Amelanchier]

The courts would not have to questions the motives behind As notice, it is either a valid notice or it is not. For the reason I gave it is definitelty not valid. Proceeding to fell any big trees would then be an offence.

 

But the affected trees are identified clearly - its just all of them; there's no ambiguity there.

 

I can't see how the LPA could argue that they were unclear about whether a tree was included or not as the same identification rules are applied to designate the protection - unless they took the view that the legislation that granted the protection was vague in the first place...

[Amelanchier]

I suspect a court might rule that the hypothetical notice was invalid, as Mr A clearly intended all along to remove a specifiec tree(s), and therefore the notice was not a reasonable representation of that intention ?

 

There's no doubt that he intended to remove a specific tree; could the court reject his intention to fell all the others though? Do you need to have a reasonable chance of doing something for it to be a legally defendable intention? It's certainly unrealistic and unlikely but why should that be a barrier? If you buy a lottery ticket it's your intention to win however unlikely the outcome.

[sloth]

Sorry for the slight derail, how do trees not in the ground fall into CAs?

Eg. You buy and place a large tree, in a container, in your front garden. Is it then covered under the CA, and requiring a s211 for further works? What if you wanted to move it? What if the container was in the ground, would lifting and moving it count as 'uprooting'?

[Amelanchier]

Not if its still in the container...

 

I had a site once where the new home owner moved a young (but 80mm dbh) Gleditsia from one side of the garden to the other. It had been planted a couple of years previous so undoubtedly some roots were severed in doing so but as the tree didn't appear to suffer (tough species) it seemed unduly petty to chase him up for un-notified works.

 

What's more fun with your container tree is to think how the LPA would prevent you from moving it about. Any TPO map could be made inaccurate in moments...

Edited January 9, 2013 by Amelanchier

[Andy Clark]

But in the limited context of s211 there is no requirement for Person A to justify his ability to fell anything nor to confirm that he has obtained the agreement of the tree owners - just that he gives notice of his intentions.

 

What if Person A confirmed that he was not an agent for the tree owners at the time of notification but that he reserved the right to approach them in the future. Two years is a long time - I can't see that the LPA has any discretion on the matter.

 

Granted, but we're not dealing with a different hypothetical notice whereby Person A has informed something different, we're dealing with this one, wherein he/she has clearly stated their intention to fell every tree over a ceratin dia. within the relevant area.

 

On the basis that Person A has notified their intention to fell every tree, (which we are assuming for the purposes of this excersise includes trees on land that are not under person A's ownership), I would still argue that it would be reasonable to assume that they have the other tree owners permission to do so at the time of submitting the notice.

 

Thus, an agent.

 

As i said though, the alternative is to call their bluff, and still only cover his property with the order.

 

Thus leaving them the leg work to then go round and get his neighbours on board.

 

While the TO sits at his desk with Google Earth and the LA GIS system open, and makes individual TPO's to every tree with Person A's property - whilst drinking tea and eating biccys.

 

[HCR]

Don't forget that under planning rules, anyone can apply for permission to build anything on anyone's land. In other words I can apply for (and get) permission to build a house in your back garden. It is not up to the LPA to discover if you have been consulted on this matter.

 

Clearly if I set foot in your garden without your permission, I have trespassed and you can sue me, but that is a separate matter.