Advertising TPO's - Hypothetically!

[daltontrees]

It happens up here too that the Council resists replying to the agent. I generally agree with the client beforehand that if the TO contacts them after a notice has been served then all communications be redirected to me and the temptation to discuss directly with the TO be resisted. That is the only way the progrees of a notice can be controlled and miscommunications eliminated.

 

In the situation being discussed here, it seems very much simpler in a CA than not. If the 6 weks are up there is an immunity from prosecution adn the onus (in therms of natural justice) would be on the Council to make a AND serve it within the 6 weeks. If it's not in a CA and you enquired and were told no TPO, a prosecution that was pursued for infringing a TPO that had just subsequently been made but not yet served would certainly fail. If it's not in a CA and you didn't check before carrying out tree work but a TPO had existed for a while, prosecution should succeed.

 

If, however, the TPO was made before the work was done but served after the work there might in theory be an offence committed. The first of two possibilities is that an enquiry was made and the Council said an Order was in the process of being made. The second is that no enquiry was made. In the first possibility, it is a sprint for the line and if caught in that situation and forced to play hardball I would be asking the Council to clarify at what date or meeting a decision on the making of the Order could be expected and I would hold that as definitive. Up to that given date I would expect immunity from prosecution. In the second possibility, I would expect prosecution for infringement of a brand new order to fali (after some argument) but for infringement of a longer-standing (confirmed and recorded) Order to succeed.

 

Cracking question though...

[daltontrees]

A quick addendum. The last post might appear to conflict with my earlier posting o this thread but the earlier one related to confirmed orders adn the later to made orders.

 

And as ever I could be wrong on both but I have given it some thought and done some research so I hope the suggestions help.

[Gary Prentice]

Now this is getting interesting Jules. Our LA has been quite lax on CA's, implementing TPO's after the six week deadline. So you're saying that knowledge of an impending order could make you liable for prosecution? Despite the expiry of the 211 notification?

 

So any inquiry into an answer on a 211 resulting in 'we are going to serve an order' would protect the tree from that point forward? Either side of the six week deadline?

 

I may be simply being obtuse on this, but it could have had significance to me personally in the past............

[daltontrees]

I am saying that knowledge of an impending Order doesn't create the offence (the existence or otherwise of the Order does that) but that prosecution is more likely to succeed if there was evidence that enquiry had been made and that the owner/contractor was aware of the possibility that an Order might exist at the time of the work even if it had not been served.

 

 

Just to be super-cler though, I am convinced that in a CA you would be in the clear if you gave notice, waited 6 weeks, heard nothing back then did the work. It really is on the Council to respond within the 6 weeks, that is what the stipulation of an exact timetable in the Act is for.

 

What makes for an interesting supplementary question is whether that notice 'life' of 2 years grants immunity from prosecution for that work on that tree even if a TPO is subsequently made and served? I believe the only answer to that question can be yes.