Hypothetical teaser

[Amelanchier]

So I'm not allowed to alter my own hypothetical situation?

 

So you recieve the following notification;

 

Dear Sir/Madam,

 

As per the requirements of section 211 of the Town & Country Planning Act 1990 (as amended) I hereby notify you of my intention to fell all the trees in the _________ conservation area that are over 75mm in diameter when measured at 1.5m from adjacent ground level. I am not an agent for any of the tree owners at the current time but may choose to act as such in the future.

 

Yours sincerely,

 

Person A

 

And you would say that, despite the clear indication, he would still be an agent?!? If I serve a notice on the LPA for a protected tree on LPA land am I the LPA's agent? What if serve a notice for a tree on land that changes ownership during the six week period - am I the agent to the new owner? I don't think that awkwardly defining person A as a universal agent helps the LPA at all - it may put some pressure back on him but doesn't alter the decision the LPA has to make.

 

As for serving an Order solely on Person A's property that would be perfectly reasonable but does rather suppose that the tree he wanted to fell was his...

[Amelanchier]

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.

 

So not guessing at species and condition at all then.

[Amelanchier]

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.

 

Indeed. They are being asked to determine the principle and appropriateness of the proposal not the legality of its construction. Under s211 the LPA is just being given an oppourtunity to make an Order not a mandate to police the future business relationships of those involved.

Edited January 9, 2013 by Amelanchier
sp.

[Amelanchier]

Also a final thought on agency.

 

I know a previous client who lives in a CA and was refused planning consent essentially on the basis of a huge number of objections from neighbours and others in the village. He also had a TPO served on his property which was confirmed despite his objection, mainly due to the high local support for the Order. Now this chap already has a bad relationship with the village so wouldn't at all be bothered about being named as the instigator provided every other resident was served with an Order.

 

How would an LPA deal with that variation of the uber211? Just let it pass I guess and take the risk? What if the notifier was a tree contractor...?

[Jon Heuch]

You'll probably guarantee a large legal bill for the tree surgeon when they/you get prosecuted!

 

i) the LA will write back and say please identify the tree - read T&CP Act 1990 211(3)(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"

 

ii) if you have identified the tree then your strategy seems to have no merit; if you have not then you have no defence, and the Council may or may not point this out in a letter before you cut the tree down.

[Jon Heuch]

) the LA will write back and say please identify the tree - read T&CP Act 1990 211(3)(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". A basic aspect of this is to give the address at which the tree is located - and if there is more than one tree at a particular address then one would need to identify each tree on which work is planned. If one were to list, say, 100 properties and identify 100 trees - one in each property (or some combination) and include the tree you wanted to cut down then you would present the LA with a problem that they could only resolve (as in preventing any of the trees' removal) with a TPO.

 

ii) if you have identified the tree then your strategy seems to have no merit - a similarly listed TPO would cover it - in the circumstances an Area TPO could be justified; if you have not then you have no defence, and the Council may or may not point this out in a letter before you cut the tree down.

[Amelanchier]

Cheers for the feedback Jon.

 

I don't agree that there is any difficulty in identifying the trees affected. The same criteria is used to identify them as protected and presumably one wouldn't say that that criteria made them hard to distinguish from the others. If it did, how would an LPA identify that an offence had occurred?

 

Also just to be clear for all. This is a thought experiment - actually doing it would be commercial and professional suicide IMO!

[Gary Prentice]

If a Local Authority can create an Area Order with out identifying every trees position and species, can they reject a 211 notice, supplied with an O.S plan of the entire CA and the details "every tree over 75mm dbh".

 

This would surely set a legal precedent if the applicant either appealled to the courts or to the secretary of state. If the councils refusal to accept the notice was upheld, every area order TPO could be brought into question.

[Jon Heuch]

If a Local Authority can create an Area Order with out identifying every trees position and species, can they reject a 211 notice, supplied with an O.S plan of the entire CA and the details "every tree over 75mm dbh".

 

This would surely set a legal precedent if the applicant either appealled to the courts or to the secretary of state. If the councils refusal to accept the notice was upheld, every area order TPO could be brought into question.

 

Two different processes - an area order is legal for all its faults; it is an AREA order i.e. defined by the area. the CA issue provides one with a defence i.e. if you were to be prosecuted. If you can show you have followed the procedure you have a defence. That defence specifically states you have to be able to identify the tree on which you intend to work. Hiding the tree you want to work on as a needle in a haystack of trees would go at least against the spirit of the law but might have to be matched with an area order TPO if it went to the limit.

 

Bear in mind that Area orders are frowned up for the very reason that prosecution presents some difficulties

[Gary Prentice]

Bear in mind that Area orders are frowned up for the very reason that prosecution presents some difficulties

 

They may be frowned upon, but theres an awful lot out there. I'm dealing with one covering 9 acres that was made in the early seventies. Talks with TO's and LPA's reveal that there's insufficient funding to update them.

 

I hypothetically disagree that every tree/all trees is not a clear enough definition. There can't be any doubt, in the planning department, if every tree is to be felled. All is all, every single one....

 

I'm speaking to our Planning Officer about this anyway, just as a hypothetical teaser. Its an interesting thread.