Hypothetical teaser

[daltontrees]

Most interesting debate...

Personally I still hold that the notice would be invalid. Saying ALL the trees in the CA may be unambiguous, but the courts (and before it gets that far, the LA), would almost certainly decide tha the purpose of the wording in the Act viz. 'sufficient particulars to identify thet tree' is not so much to make it possible for the LA to locate the tree but for it to direct the LA to the specific tree (and if necessary use powers in the Act to gain access to land to inspect the tree and consider the implications of the Notice). THE tree! Courts always have and use the fallbacks of considering a combination of reasonability and what the intentions of Parliament were. If I was on the team trying to destroy Mr A's defence I would ask the court to consider whether, given the underlying motives of CAs to protect the amenity of the area in a broad public interest were served better by Parliament having intended the legislation to mean that the notice was valid than by to mean that it was a 'device' and was therefore not. There really can only be one outcome of that 'okkams razor'.

 

Random thoughts that came to me while typing that were (i) if the trees that are above 75mm are not specifically identified, the LA would have to serve notices to gain statutory access to ALL the land to measure all the trees; that would in itself be a big issue of some kind. (ii) The Council's case for a temporary TPO would be greatly improved if it was contemplating the change in amenity that the loss of all trees in the CA would cause. The Council can quite legitimately let the occasional CA NOtice for individual trees lapse because it knows the overall amenity of the CA will not be materially affected.

[Andy Clark]

So not guessing at species and condition at all then.

 

 

Only a hypothetical cup of tea and biccy Tony.

 

But none the less, google street view works wonders! Hypothetically.

 

 

 

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[Amelanchier]

Most interesting debate...

Personally I still hold that the notice would be invalid. Saying ALL the trees in the CA may be unambiguous, but the courts (and before it gets that far, the LA), would almost certainly decide tha the purpose of the wording in the Act viz. 'sufficient particulars to identify thet tree' is not so much to make it possible for the LA to locate the tree but for it to direct the LA to the specific tree (and if necessary use powers in the Act to gain access to land to inspect the tree and consider the implications of the Notice). THE tree! Courts always have and use the fallbacks of considering a combination of reasonability and what the intentions of Parliament were. If I was on the team trying to destroy Mr A's defence I would ask the court to consider whether, given the underlying motives of CAs to protect the amenity of the area in a broad public interest were served better by Parliament having intended the legislation to mean that the notice was valid than by to mean that it was a 'device' and was therefore not. There really can only be one outcome of that 'okkams razor'.

 

The UK courts only started adopting the purposive approach (i.e., accounting for the purpose and intention of legislators) in 1969! I'm sure you're right (and nepia earlier also) insofar as I would expect that the courts would see the notice as a attempt to game the system and determine that the intention of the original legislators was to allow the LPA a fair chance to serve a TPO on a case by case basis rather than to create a device for triggering a huge workload to evade proper assessment.

 

Random thoughts that came to me while typing that were (i) if the trees that are above 75mm are not specifically identified, the LA would have to serve notices to gain statutory access to ALL the land to measure all the trees; that would in itself be a big issue of some kind. (ii) The Council's case for a temporary TPO would be greatly improved if it was contemplating the change in amenity that the loss of all trees in the CA would cause. The Council can quite legitimately let the occasional CA NOtice for individual trees lapse because it knows the overall amenity of the CA will not be materially affected.

 

I'm not sure if it's different in Scotland but there is existing legislation in the TCPA that grants the LPA rights of access to protected trees without the need for a notice. Can't quite recall it at the moment though. Your second point is quite effective - that would be a decent reason for an Order!

 

So the ubernotice is not so much a tool to allow the felling of a protected tree rather a mechanism for forcing the serving of an Order. A TPO review device?

[Amelanchier]

Only a hypothetical cup of tea and biccy Tony.

 

But none the less, google street view works wonders! Hypothetically.

 

 

 

Sent from my BlackBerry 9700 using Tapatalk

 

True. It was used in a successful prosecution in Norwich. Streetview showed the various viewpoints and significance of trees felled over a bank holiday and allowed the court to better calculate the fine!