Advertising TPO's - Hypothetically!

[Gary Prentice]

Absolutely not; there was no TPO in force when you felled and you could not have been expected to know about one in the pipeline. That's why gobs get cut on a Saturday morning once contractors have got wind of TOs showing interest: the TO's not back in the office until Monday.

 

Expectation IMO is irrelevant. The crux of the matter is when, exactly, the order is in force/served. I'm not trying to be pedantic but there surely must be some precedence on this. My research has failed to produce the answer as to when an order actually becomes valid.

 

Our local authority sends the order by recorded delivery, so my assumption is that once the occupier signs it's become legally 'served'. It also appears that when ownership is unknown, a notice fixed to a tree is sufficient notification.

 

I've been stopped once or twice by an enforcement officer claiming that a TPO is being made. I suspect that he actually had no legal authority to prohibit the felling and this is probably a relatively common occurrence.

[skyhuck]

I felled two trees in a group of three, the TO turned up with the order before I felled the third.

 

I had committed no offence, as the order had not been served.

 

I appealed the TPO on the third, as it was a poor tree on its own and only warranted a TPO as part of the group, they agreed and I felled that one too.

[nepia]

Thank you: always good to get a theory proved correct.

[Gary Prentice]

So the consensus is that validation only occurs once the order is either served to the occupier or the order is exhibited on the actual land?

 

I find it odd that such simple clarification appears to be absent within the available literature. So much of the legislation seems open to interpretation.

[nepia]

So the consensus is that validation only occurs once the order is either served to the occupier or the order is exhibited on the actual land?

 

I find it odd that such simple clarification appears to be absent within the available literature. So much of the legislation seems open to interpretation.

 

 

Does a TPO get served? If my TO decided the cedar in my back garden was worth an Order is he obliged to inform me even? I thought not.

Ultimately it would surely be down to a court/tribunal to decide at what point an Order became effective.

As Orders are required to be available for public viewing this would be the time that it either became visible on the Internet or as a hard copy at the Council offices - no?

 

I need to bow out now I'm afraid; off on a trip to a bit of Scotland where the Internet connection makes dialup look good.

 

Jon

[Gary Prentice]

TPO has to be served, I think its section 201 that provides the immediate protection for six months. The occupier and interested parties then have the opportunity to make representation to have it revoked.

[treequip]

Does a TPO get served? If my TO decided the cedar in my back garden was worth an Order is he obliged to inform me even? I thought not.

Ultimately it would surely be down to a court/tribunal to decide at what point an Order became effective.

As Orders are required to be available for public viewing this would be the time that it either became visible on the Internet or as a hard copy at the Council offices - no?

 

I need to bow out now I'm afraid; off on a trip to a bit of Scotland where the Internet connection makes dialup look good.

 

Jon

 

?????? Of course an order gets served, it must be served and confirmed to the people it affects, if it isn't served it isn't enforceable.

 

The law will hold that the order is properly served when the prescribed procedure has been followed. This means served to the land owner and or posted on the land affected.

[nepia]

?????? Of course an order gets served, it must be served and confirmed to the people it affects, if it isn't served it isn't enforceable.

 

The law will hold that the order is properly served when the prescribed procedure has been followed. This means served to the land owner and or posted on the land affected.

 

 

I only asked! Actually I thought the onus was on the landowner to determine if his land was affected by Orders, not on the LA to inform him of any new Orders.

 

Thanks for your input!

[Amelanchier]

Interesting one certainly.

 

Having re-read the legislation it would seem that the Order is in effect from the moment it is made. That is to say once it has received whatever delegated authority it needs to become a legal document (i.e., it is signed and sealed by the right bod at the LPA). See section 4 of the catchily titled Town and Country Planning (Tree Preservation)(England) Regulations 2012 [my emphasis in bold]:

 

"4.—(1) An order shall not take effect (other than provisionally in accordance with paragraph (2)) unless and until confirmed by the authority, and must be confirmed no later than the expiration of the period of six months beginning with the date on which it was made.

 

(2) Until confirmation an order shall take effect provisionally on the date on which it is made until—

 

(a)the expiration of a period of six months beginning with the date on which the order was made;

(b)the date on which the order is confirmed; or

©the date on which the authority decide not to confirm the order,

whichever first occurs."

 

Then note the following provision of the same [again with my emphasis in bold]:

 

"5.—(1) As soon as practicable after making an order, and before confirming it, the authority which made it shall—

 

(a)serve on the persons interested in the land affected by the order—

(i)a copy of the order; and

(ii)a notice containing the particulars specified in paragraph (2);

(b)make a copy of the order available for public inspection, in accordance with paragraph (3); and

©in the case of an order made following service of a notice under section 211(3) (preservation of trees in conservation areas), serve on the person who served that notice the information specified in sub-paragraph (a)."

 

That says to me that serving is a secondary thing; it is irrelevant to the pure legal existence of the Order. The Order comes into effect as soon as it is made (provisionally of course) and the LPA must serve it as soon as they can. It can't come into effect on serving because it would exist in a strange half reality after the postman had started delivering at one property and until the last party had been delivered to.

 

That said, not being served or not being told that an Order exists (either over the phone or via a website would certainly be decent defence. Nailing someone to the cross for an offence committed in the hinterland between the lid going back on the pen at the council office and the copy arriving in the hands of the interested parties would probably be contrary to natural justice.

[Gary Prentice]

Interesting one certainly.

 

Having re-read the legislation it would seem that the Order is in effect from the moment it is made. That is to say once it has received whatever delegated authority it needs to become a legal document (i.e., it is signed and sealed by the right bod at the LPA). See section 4 of the catchily titled Town and Country Planning (Tree Preservation)(England) Regulations 2012 [my emphasis in bold]:

 

"4.—(1) An order shall not take effect (other than provisionally in accordance with paragraph (2)) unless and until confirmed by the authority, and must be confirmed no later than the expiration of the period of six months beginning with the date on which it was made.

 

(2) Until confirmation an order shall take effect provisionally on the date on which it is made until—

 

(a)the expiration of a period of six months beginning with the date on which the order was made;

(b)the date on which the order is confirmed; or

©the date on which the authority decide not to confirm the order,

whichever first occurs."

 

Then note the following provision of the same [again with my emphasis in bold]:

 

"5.—(1) As soon as practicable after making an order, and before confirming it, the authority which made it shall—

 

(a)serve on the persons interested in the land affected by the order—

(i)a copy of the order; and

(ii)a notice containing the particulars specified in paragraph (2);

(b)make a copy of the order available for public inspection, in accordance with paragraph (3); and

©in the case of an order made following service of a notice under section 211(3) (preservation of trees in conservation areas), serve on the person who served that notice the information specified in sub-paragraph (a)."

That says to me that serving is a secondary thing; it is irrelevant to the pure legal existence of the Order. The Order comes into effect as soon as it is made (provisionally of course) and the LPA must serve it as soon as they can. It can't come into effect on serving because it would exist in a strange half reality after the postman had started delivering at one property and until the last party had been delivered to.

 

That said, not being served or not being told that an Order exists (either over the phone or via a website would certainly be decent defence. Nailing someone to the cross for an offence committed in the hinterland between the lid going back on the pen at the council office and the copy arriving in the hands of the interested parties would probably be contrary to natural justice.

 

I'd agree that the physical serving would appear to be secondary. Care would have to be taken then, if, with a CA the six week period was up and the authority informed you, by phone that an order was being made.

 

Relying on the postie delivering/serving could leave you in the mire, strictly speaking.

 

With the highlighted text, it's strange but our local authority always fails to serve us, as agent, on 211 notifications. I think Dalgea O'Callahan's working party, during the consultancy period for the new legislation, highlighted the issue of the lack of information to the agent.