Refusal of consent & Compensation

[kevinjohnsonmbe]

Not had an app refused (yet!) I've had cases where the TO has objected but PO over ruled. Good info for the future though, BZ for posting

[daltontrees]

I believe it's the same here, being only included in the guidelines. We don't even get an acknowledgement of receipt of applications from one authority.

 

It's not even in the Guidelines up here. The interesting thing then is that if the English guidelines suggest it and if a LPA don't bring it to applicant's attention bu and then the applicant is time-barred from claiming compensation when he later finds out he could have claimed, would the LPA be guilty of maladmisistration and liable to pay out the equivalent of what the compensation would have been? I think they would have nowhere to hide in such a case.

[daltontrees]

This is probably not exactly the right context, but it may help in building up a bigger picture. I've just had a TPO placed upon a small plantation woodland which I manage for firewood. The LPA fell at the first hurdle by virtue of the fact that they didn't inform me (the owner of the wood) or, in fact, many of the adjacent woodland owners/managers and snuck the TPO through. When pressed about the potential loss of earnings due to their categoric refusal to allow thinning, the LPA verbally stated that no form of compensation for this loss was available....It appears that my LPA are not conversant with the relevant regulations, yet apply them without forethought.

I am not clear whether the TPO stands regardless of the mistakes made by the Council in the notifications. And whether there has been an application for consent for thinning which has been refused. But if so, 24(3) of the new 2012 Regulations seem to deal specifically with forestry/woodlands and provide for compensation based on the depreciation in the value of the trees due to deterioration of the quality of the wood because it can't be thinned. Not quite the same as loss of earnings but...

I have no idea whether the Guidance that refusals should be accompanied by advice about compensation rights applies to such specialist cases.

[daltontrees]

We are just about to have an application refused, the tree is within a beer garden and it has an adverse affect on trade. The application has not been validated as yet, we are in discussion with the LPA. This could be a determining factor if they give consent or not.

 

Interesting! Most reported compensation cases have dealt with claims for 'damage', but case law seems to suggest that claims for 'loss' (as provided for in the Act) could cover commercial loss. However, I expect the link between advers trade and the tree would have to be proven and the loss quantified objectively. I'd love to see how this one goes.

[Gary Prentice]

I am not clear whether the TPO stands regardless of the mistakes made by the Council in the notifications. And whether there has been an application for consent for thinning which has been refused. But if so, 24(3) of the new 2012 Regulations seem to deal specifically with forestry/woodlands and provide for compensation based on the depreciation in the value of the trees due to deterioration of the quality of the wood because it can't be thinned. Not quite the same as loss of earnings but...

I have no idea whether the Guidance that refusals should be accompanied by advice about compensation rights applies to such specialist cases.

 

From the compensation section of the guidence:

 

 

 

Forestry Operations

14.8 Where the LPA refuse consent under a TPO made on or after 2 August 1999 for the felling of woodland in the course of forestry operations, compensation is available only to the owner of the land, as defined in section 34 of the Forestry Act 1967. The amount of compensation payable is limited to any depreciation in the value of the trees which is attributable to deterioration in the quality of the timber in consequence of the LPA's refusal of consent. Claims for compensation in these circumstances are regulated by section 11(3) to 11(5) of the Forestry Act 1967.160

 

which may give you a starting point.

[Gary Prentice]

It's not even in the Guidelines up here. The interesting thing then is that if the English guidelines suggest it and if a LPA don't bring it to applicant's attention bu and then the applicant is time-barred from claiming compensation when he later finds out he could have claimed, would the LPA be guilty of maladmisistration and liable to pay out the equivalent of what the compensation would have been? I think they would have nowhere to hide in such a case.

 

I don't normally disagree with you, but in this instance I will:001_tt2:

 

As the model orders are for guidelines, I don't think they've any legal standing. LA's seem to make their own rules at times, particularly with regard to supplying information on restraints. I know some posters on here, have to email plans and wait a week or more.

 

If ignorance of the law is no defense, the ability to claim would surely be down to the claimant to ascertain. I am just theorizing though.

[daltontrees]

OOOOh, disagreement!

 

'ignorance of the law is no defense' is used by prosecutors to avoid an easy get-out. I don't see it having any relevance here, unless it is against the Council. The Government drafts legislation, Parliament approves it, it becomes law, Government then issues guidance as to how it should be properly applied, including letting citizens at least be aware of their rights. What is good for making sure citizens know that they have a right of appeal against refusals is good for letting them know they have a right to claim compensation.

 

So, if Local Government (created by Statute generated by Government and approved by Parliament) chooses not to follow the advice of Government, knowing that the result could be to deprive a citizen of his/her right to compensation, Local Government's ignorance of the law is definitely no defence; the only other option it has is to claim wilful defiance of the guidance or to explain why it hasn't advised citizens of their right to appeal.

 

Put that in front of a judge, turn the Council up to 180 fahrenheit for 3 days and wait. I don't know exactly what the law is on all this as it comes under nebulous concepts of natural justice and the like, but if it looks like a turkey, gets stuffed like a turkey and bleeds like a turkey it probably is a turkey.

[Gary Prentice]

:lol: I'll concede your point

[kevinjohnsonmbe]

OOOOh, disagreement!

 

'ignorance of the law is no defense' is used by prosecutors to avoid an easy get-out. I don't see it having any relevance here, unless it is against the Council. The Government drafts legislation, Parliament approves it, it becomes law, Government then issues guidance as to how it should be properly applied, including letting citizens at least be aware of their rights. What is good for making sure citizens know that they have a right of appeal against refusals is good for letting them know they have a right to claim compensation.

 

So, if Local Government (created by Statute generated by Government and approved by Parliament) chooses not to follow the advice of Government, knowing that the result could be to deprive a citizen of his/her right to compensation, Local Government's ignorance of the law is definitely no defence; the only other option it has is to claim wilful defiance of the guidance or to explain why it hasn't advised citizens of their right to appeal.

 

Put that in front of a judge, turn the Council up to 180 fahrenheit for 3 days and wait. I don't know exactly what the law is on all this as it comes under nebulous concepts of natural justice and the like, but if it looks like a turkey, gets stuffed like a turkey and bleeds like a turkey it probably is a turkey.

 

Well presented!

[daltontrees]

Well presented!

 

Thankyou.

The 2009 Guidelines have a Model Refusal Notice which says among other things

 

"COMPENSATION

If you suffer any loss or damage as a result of this refusal of consent, you may be entitled to recover from the Council compensation. If you wish to make a claim you must do so within 12 months from the date of this decision (or, if you appeal to the Secretary of State, within 12 months from the date of his decision). Claims should be made in writing to [name and address of relevant officer of the Council].

 

"This paragraph should also be included (with appropriate amendment) where the LPA grant consent subject to conditions."

 

There is absolutely no excuse for Councils not to use trhe Model Notices. I mean, the work has been done for them all tehy have to do is cut and paste. Why wouldn't they? Don't answer that!