Provisional TPO procedural/legal questions

[booksearch22]

Hi. I'm hoping that some of the folks who use and read these boards can provide a layman with some technical advice!

 

My elderly parents live on a smallholding, which has many hedgerows with various species of tree. They have cut down about 10 trees over a a period of 30 years, and apart from some essential works now due have no intention of cutting down any more. Between one of their boundaries and the next door farm is a lane/public footpath. The next door farmer asked an employee to do some hedgerow maintenance, so we understand, who instead managed to cut down several metres of hedgerow trees in a fairly brutal fashion. The farmer was fairly horrified, and more importantly so was a neighbouring ex-council official who contacted the LA. This week the farmer received a notice of the imposition of provisional TPO, which has incorporated a section of my parents' property in its area of coverage. I am very angry that they have been caught up in a situation that is not their fault, and the LA has managed to 'protect' trees that are already felled and trees that were not under threat in the first place. My parents do not need the hassle of having to apply for planning to trim their hedge.

 

I have looked into the technicalities of this and have some questions that people here may be able to answer. As yet my parents have not been served notice, and I believe that the TO responsible for the listing has failed to ascertain their ownership of one side of the area now covered by the provisional TPO. Under the guidelines laid out in the 'Blue Book' (as I believe it is known in your circles) sections 3.25 - 3.27 seem to suggest that notice should be served either in person or by recorded/registered delivery. The farm where the felling has taken place has (as mentioned previously) received their notice a few days ago, as yet my parents have had nothing. Two notices have been tied to the beginning and end section of the hedge that is covered by the TPO, but only on my parents' section of hedge. As I see it the LA have failed to follow the Blue Book guidelines in that it is very obvious they have a large bungalow just the other side of the affected hedge.

 

So my questions are as follows:-

 

1). I believe a key piece of case law in the serving of provisional TPOs is that of Knowles v Secretary of State for the Environment, Transport and the Regions and Chorley BC [1998] . Can anyone supply me with a copy of this, as it seems impossible to find a copy on the internet?

 

2). Are there other relevant cases (of whatever outcome) that relate to the serving of TPOs that you are aware of?

 

2). I'm guessing that even if we are able to successfully halt the LA in their tracks by pointing out nearer the deadline that they have failed to serve notice on an affected party, they have the option of cancelling the TPO and issuing a new one. Can anyone advise the best approach in negotiating this matter with the LA to pre-empt such tactics and get this resolved in a reasonably amicable manner. I believe there are TOs who read these pages, and please be assured I am not trying to have a row with the LA, just spare my parents (dad is now well into his 80s) aggro they just can't cope with anymore. I believe that (from a lay point of view) it could be said that the TPO is not expedient inasmuch as the LA has no reason to believe the trees on my parents' land are under threat, but is there an optimum way of arguing this point?

 

Any help people can give will be really appreciated!

 

Thanks, Rob.

[Gary Prentice]

Hi. I'm hoping that some of the folks who use and read these boards can provide a layman with some technical advice!

 

My elderly parents live on a smallholding, which has many hedgerows with various species of tree. They have cut down about 10 trees over a a period of 30 years, and apart from some essential works now due have no intention of cutting down any more. Between one of their boundaries and the next door farm is a lane/public footpath. The next door farmer asked an employee to do some hedgerow maintenance, so we understand, who instead managed to cut down several metres of hedgerow trees in a fairly brutal fashion. The farmer was fairly horrified, and more importantly so was a neighbouring ex-council official who contacted the LA. This week the farmer received a notice of the imposition of provisional TPO, which has incorporated a section of my parents' property in its area of coverage. I am very angry that they have been caught up in a situation that is not their fault, and the LA has managed to 'protect' trees that are already felled and trees that were not under threat in the first place. My parents do not need the hassle of having to apply for planning to trim their hedge.

 

I have looked into the technicalities of this and have some questions that people here may be able to answer. As yet my parents have not been served notice, and I believe that the TO responsible for the listing has failed to ascertain their ownership of one side of the area now covered by the provisional TPO. Under the guidelines laid out in the 'Blue Book' (as I believe it is known in your circles) sections 3.25 - 3.27 seem to suggest that notice should be served either in person or by recorded/registered delivery. The farm where the felling has taken place has (as mentioned previously) received their notice a few days ago, as yet my parents have had nothing. Two notices have been tied to the beginning and end section of the hedge that is covered by the TPO, but only on my parents' section of hedge. As I see it the LA have failed to follow the Blue Book guidelines in that it is very obvious they have a large bungalow just the other side of the affected hedge.

 

So my questions are as follows:-

 

1). I believe a key piece of case law in the serving of provisional TPOs is that of Knowles v Secretary of State for the Environment, Transport and the Regions and Chorley BC [1998] . Can anyone supply me with a copy of this, as it seems impossible to find a copy on the internet?

 

2). Are there other relevant cases (of whatever outcome) that relate to the serving of TPOs that you are aware of?

 

2). I'm guessing that even if we are able to successfully halt the LA in their tracks by pointing out nearer the deadline that they have failed to serve notice on an affected party, they have the option of cancelling the TPO and issuing a new one. Can anyone advise the best approach in negotiating this matter with the LA to pre-empt such tactics and get this resolved in a reasonably amicable manner. I believe there are TOs who read these pages, and please be assured I am not trying to have a row with the LA, just spare my parents (dad is now well into his 80s) aggro they just can't cope with anymore. I believe that (from a lay point of view) it could be said that the TPO is not expedient inasmuch as the LA has no reason to believe the trees on my parents' land are under threat, but is there an optimum way of arguing this point?

 

Any help people can give will be really appreciated!

 

Thanks, Rob.

 

You need to first lodge your objection to the provisional order. You usually have 28 days to do so, which is the minimum period by law but most LPAs use.

 

If the authority haven't been able to ascertain the landowner or there is doubt as to the owner, simply erecting a copy of the order is deemed sufficient notice.

 

After receiving an objection the matter often goes to committee, where you may have opportunity to attend and speak. But before that I'd suggest contacting the planning and tree officers, try to arrange a site visit and discuss your issues then.

 

The council have six months in which to confirm the order, or to confirm an amended order.

[booksearch22]

If the authority haven't been able to ascertain the landowner or there is doubt as to the owner, simply erecting a copy of the order is deemed sufficient notice.

.

 

Thanks for your reply - I am not sure how this squares with 3.27 from the 'blue book':-

 

“3.27 - Where it appears to the LPA that land affected by the TPO is unoccupied, the documents and notice will be taken as duly served if they are addressed to 'the owners and occupiers' of the land described by the LPA and are affixed conspicuously to some object on the land”.

 

Like I said in the first post there is a very large bungalow visible from the affected lane, so I don't see how they can just tack a notice to a post given the above section.

 

I've also just heard this afternoon that the land on which the works have taken place has a different owner to the occupier. The farmer in fact received two notices - one to himself as occupier, and one addressed to the owner with a request to send it on. Surely the LA should have the responsibility to do this themselves?

 

Again any comments or advice is much appreciated.

 

Rob.

[Gary Prentice]

I had a thread on this last week. The consensus of opinion was that the order is effective pretty much when it is made, regardless of how, or where, it is delivered/affixed. It's a land charge, available for inspection at the local council office, so once recorded is absolute, no defence as to lack of knowledge or improper serving.

 

All this comes under the expediency situation with regard to a later defence that there was no knowledge of the order. I'd imagine that the authority knows who the farmer is because he pays the council tax as occupier.

 

A client of mine had a block of flats, so they served her (her name was the 'applicant' on a 211 notice) but also served her company accountant - where the tax bill was sent.

 

I think it's pretty much irrelevant as to how the order has been served, it's now in force and if contested at this stage would only be served again, to your parents, properly. Testing the legality of a TPO can only be done in the High Court, I believe, so you may not wish to pursue that angle.

[booksearch22]

I have looked at your other thread with interest, and I think we may be at cross-purposes. I understand the concept that once an order is made it is valid, but my question is basically - "what ammunition does someone on the receiving end of a provisional TPO have when they exercise their right of appeal in the 28-day period"?

 

The blue book talks about procedural flaws as being one legitimate line of defence at that stage, and I believe in the instance I am talking about that the LA have simply been lazy in their prior research of the situation. Does anyone have successful experience of at least getting a provisional TPO modified? Any tips most welcome!!

 

Rob.

 

PS: Just to edit this post, and maybe as an alternative point of view, the case I quoted in the original post was of a situation where the LA sent notice to the wrong address of the owner of some woodland which had been felled 10 days after a TPO was made. The case was dismissed and the LA ended up responsible for all costs.

Edited April 21, 2013 by booksearch22
adding lines

[458 Lott]

It's a straight forward objection letter

It's an hours work your bright but not experienced enough you need to spend £75 to £100 for a letter from a suitable qualified expert

Trust me its easier for all parties

A high court challenge is expensive

Your other alternative based on your interpretation of the out of date blue book would be a judicial review slightly cheaper

Shoot straight stay alive

[Amelanchier]

Just a quick response from me unfortunately as I'm well under the cosh this week.

 

Your main problem is that there is an unwritten bias in the system toward the LPA. The threshold for what quality of tree qualifies for a TPO or what threat is percieved is often pretty low and cannot be challenged beyond the objection procedure (which is ultimately determined by the LPA themselves). Also, (as has already been said) pointing out serving errors at objection normally means that you'll just get another TPO but properly served. Even with a catalogue of errors you might just end up embarrassing the officer in front of the committee only to have them consider the TPO appropriate anyway on a thin precautionary basis (not to say that that doesn't have it's own reward).

 

Pointing out serving errors may get a TPO quashed at the High Court but it's a rare occurrence and you'll need to show that you were disadvantaged to some degree by the errors. The HC seems to very lenient on LPAs despite the most unbelievable maladministration if no prejudice amounts from it.

 

I note the you state in the OP that your parent don't intend to cut any more trees down - as a result I have to ask, what difference does it make that the trees are protected? Try and distance the anger you feel at the indifference and alleged incompetence and take the long view.

Edited April 22, 2013 by Amelanchier

[booksearch22]

Thanks for your reply Mr Sorensen. In answer to your question 'what difference does it make if my parents don't intend to cut the trees down' you must realise better than I do that you need planning permission even to lop branches off on a TPO tree, and that's why I'm so frustrated at the LA's actions in this matter. Your point about the LA being judge and jury, and not embarrassing the TO in front of his colleagues is fair comment and I have logged your warning! Thanks, Rob.

[Amelanchier]

In answer to your question 'what difference does it make if my parents don't intend to cut the trees down' you must realise better than I do that you need planning permission even to lop branches off on a TPO tree, and that's why I'm so frustrated at the LA's actions in this matter.

 

Rob,

 

I do, but it's unlikely that you'd be refused consent for regular maintenance; it sounds far worse than it is.

 

I know it's frustrating to have to suddenly have do the merry dance of bureaucracy for something you've been doing for years - problem is, rightly or wrongly, the system doesn't rate that very highly when considering the protection of trees.

 

Just to clarify - I didn't say you shouldn't point out the errors to the committee. Just that pointing out mistakes won't often achieve much - committees often have very short memories. Even those of us who have pointed out re-occurring problems tend to get short shrift.

 

By all means have your say and make your objection - but most important of all get into a dialogue. Preferably in writing.

[booksearch22]

OK, thanks again for your advice! Rob