Hypothetical teaser

[Amelanchier]

And then see how many of them take their wrath on Person A, for getting a TPO stuck on their property

 

It just occured to me that Person A could also respond to any direct grief that he recieved by pointing out that the Order has been served because the LPA just doesn't trust the residents not to fell their trees...

[Amelanchier]

Yes, but is it likely I'm going to be felling them if there not on my land and I'm not a contractor??

 

Nope Huck but the legislation doesn't take that into account.

[Amelanchier]

Ahhh, but what I was suggesting is that it IS the letter of the law that CA notices are not retrospectively assignable. Fell based on a notice by someone other than yourself or your agent and it may well be an offence. I think that examination after the offence that found that the 'agency' was constituted after the notice was served would destroy your defence.

Please don't press me on the English legislation though, it was very begrudgingly that I learnt it all for the AATech law exams knowing that it would firstly be no use to me in Scotland and secondly it would make it harder to remember the Scottish rules which I use weekly.

 

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. .

(4)Section 210 shall apply to an offence under this section as it applies to a contravention of a tree preservation order.

 

I agree it does read very specific regarding the notifier. Read strictly I can't see that you can even pass that onto a contractor as an agent / homeowner. That might not help the theoretical LPA much though as they can't be sure that he won't be doing the felling for any other thrid party in the affected CA.

[daltontrees]

The matter of assignability of notice is one question here, but if you look at it from another perspective that avoids the issues of assignability and put the question as follows, would the answer be any different?

What if every person (let's say undeniably the owner occupiers) who has trees within a particular (hypothetyical) Conservation Area simultaneously gave the Council valid notices of their intention to have their trees removed?

[Andy Clark]

Possibly simples but tree owners can't object to person A so their frustrated letters would land on the TO's desk while he's out wandering around. And speaking from experience they would come thick and fast regardless of any covering letter explaining the situation.

 

 

 

Also I'd have to check but while there certainly is an obligation to keep a public record of applications and notifications I'm not sure if the data protection act allows the LPA to mailshot Person A's address in that manner. The s211 did not state that Person A was the residents agent so that could be a risky strategy.

 

 

 

In any case, if the game took that turn, Person A could respond by submitting ten, fifty or hundred new notifications under assumed names /addresses just to make the TO's job even more fun. They'd be no good as defences in law but they'd cut the wandering around time down a bit...

 

 

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.

 

They would then have to go around and convince their neighbors to support their cause in order for any trees to be felled outside of the area order.

 

I know what I'd say if my neighbour came banging on my door with words along the lines of "ere, do me a favour and let me fell the trees in your garden. I'm trying to get one over the Councils TO".

 

 

 

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[daltontrees]

Thanks the legislation is almost identical both sides of the border.

But I think the key words in there that scupper Mr A's plan is '(with sufficient particulars to identify the tree". In other words the Notice would be valid and the Plaanning Authority need only to communicate that to Mr A.

And await no doubt his hypothetical follow-up notice that identifies all the trees in the CA? As a discrete number of trees the LA might find such a notice (setting aside for now the question of assignability) an easier set of targets to hit. I think they could then legitimately move to make a temporary TPO.

'Tis a shame for LAs that a valid CA notice has a longer life than a temporary TPO, and the matter would have to be adressed eventually but in 6 months rather than 6 weeks.

[daltontrees]

Sorry, sorry, that should have said the notice would NOT BE VALID.

[treequip]

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.

 

They would then have to go around and convince their neighbors to support their cause in order for any trees to be felled outside of the area order.

 

I know what I'd say if my neighbour came banging on my door with words along the lines of "ere, do me a favour and let me fell the trees in your garden. I'm trying to get one over the Councils TO".

 

 

 

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You might suppose to assume what the courts would consider reasonable but its certainly legal

[Andy Clark]

You might suppose to assume what the courts would consider reasonable but its certainly legal

 

 

What is? I don't understand the context of what you're saying is legal.

 

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[treequip]

What is? I don't understand the context of what you're saying is legal.

 

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The part of the quote in bold