Blanket TPO's

[Big 'Ammer]

The point I was making Andy was, that in this case, trees planted after the area order was put in place are not covered by the order.

[nepia]

If you have an Area Order, which it certainly sounds like you do, it would be odd and unesseccary to mark the individual trees... As you say "any tree of whatever species" that was present in 1973!

 

Thanks. Perhaps my TO was just darned efficient - every involved tree is marked and the bigger ones are even numbered. I'd made an enquiry re scrapping a horrible leylandii that appeared only slightly younger than the Order. There was no problem but the reply to my letter was a copy of the Order, with combined tree/drainage map!

 

It seems a fair question made after my last post re how the LA would prove/disprove anything at a later stage without a map: any thoughts? Counting the rings left in a stump can't be the definitive way of telling whether a felled tree was pre or post Order.

[Bundle 2]

" It seems a fair question made after my last post re how the LA would prove/disprove anything at a later stage without a map: any thoughts? Counting the rings left in a stump can't be the definitive way of telling whether a felled tree was pre or post Order. ...."

 

Exactly my point mate, well spotted. It cannot be made to work for the LA's in the event of a dispute after the fact...ie, trees removed. Whos to argue their "existential " whereabouts if they were never logged...and worse still the headache that could culminate in proving their age at the time of their "illegitimate" removal so de facto their inclusion in any said order....

It seems to me that the tree officer has indeed seen the implications of the order and acted quite properly, discharging his duty by providing a comprehensive record of the scope of said order...

LA's would be well advised ( in an ideal world ) to use GIS technology to log their respective tree stock in as comprehensive a way as possible....?

[Paul Barton]

I think that these are some of the reasons why an area TPO is recommended as a quick plan of protection for trees facing an imminent threat. As I understand it, area TPO's in particular should be reviewed as soon as possible and replaced by individual or woodland TPOs.

 

The 'blue book' states:

"In the Secretary of State's view the area classification should only be used in emergencies, and then only as a temporary measure until the trees in the area can be assessed properly and reclassified."

 

I gather that many council's have quite a few old area TPOs that have not been reviewed - this leads to the confusion as described above and also leaves the LA wide open for disputes.

[Yorkshireman]

In short Yes

 

Neutral Citation Number: [2009] EWHC 220 (Admin)

 

Case No: CO/5568/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

 

Royal Courts of Justice

Strand, London, WC2A 2LL

 

Date: 13/02/2009

 

Before:

 

MR JUSTICE CRANSTON

- - - - - - - - - - - - - - - - - - - - -

Between:

 

Palm Developments Limited Claimant

- and -

The Secretary of State for Communities and Local Government

 

Medway Council Defendant

 

 

42. As for the temporal reach of woodland orders, I see nothing illogical in tree preservation orders applying to future trees. The tree preservation order for the one tree, or for a group of trees, may be intended to apply to specific trees only, but a woodland order would seem designed to protect the undifferentiated mass of trees in the specified area. The order would not achieve its purpose if it applied only to the trees existing at the date it was made. Since those trees would die it would be necessary if the woodland were to be protected to make new orders, on an uncertain but periodic basis, to continue to protect the trees in the area. That cannot be a sensible construction of the legislation. As the Blue Book suggests, because the purpose of a woodland tree preservation order is to safeguard the woodland as a whole, which depends on regeneration or new planting, it must extend to trees which grow or are planted after the order is made. Even if I had any doubts that this was the correct interpretation of the 1990 Act, I would find it difficult to gainsay the remarks of Hutchinson LJ to that effect in Evans v Waverley DC, albeit that the conclusion may simply have been assumed.

Edited March 25, 2009 by Yorkshireman

[Amelanchier]

" It seems a fair question made after my last post re how the LA would prove/disprove anything at a later stage without a map: any thoughts? Counting the rings left in a stump can't be the definitive way of telling whether a felled tree was pre or post Order. ...."

 

Exactly my point mate, well spotted. It cannot be made to work for the LA's in the event of a dispute after the fact...ie, trees removed. Whos to argue their "existential " whereabouts if they were never logged...and worse still the headache that could culminate in proving their age at the time of their "illegitimate" removal so de facto their inclusion in any said order....

It seems to me that the tree officer has indeed seen the implications of the order and acted quite properly, discharging his duty by providing a comprehensive record of the scope of said order...

LA's would be well advised ( in an ideal world ) to use GIS technology to log their respective tree stock in as comprehensive a way as possible....?

 

I think that these are some of the reasons why an area TPO is recommended as a quick plan of protection for trees facing an imminent threat. As I understand it, area TPO's in particular should be reviewed as soon as possible and replaced by individual or woodland TPOs.

 

The 'blue book' states:

"In the Secretary of State's view the area classification should only be used in emergencies, and then only as a temporary measure until the trees in the area can be assessed properly and reclassified."

 

I gather that many council's have quite a few old area TPOs that have not been reviewed - this leads to the confusion as described above and also leaves the LA wide open for disputes.

 

Indeed. Area orders are next to worthless once they're about 5 years old! They're a pain for tree owners, tree managers/workers and tree officers. But in an emergency situation - noting beats them for sheer land grabbing potential (except prehaps a woodland as Yorkshireman indicates)!!! IIRC the Batho report indicated to LPAs that Area designations should be resurveyed and modified within 2 years (i'll have to go and check that now)

 

When we make large Area Orders we tend to take a billion photos. With statute law and strict liability on our side that is often all we need - if there is a tree in a picture taken on the date of serving and one day its gone the onus is on the landowner to prove he didn't commit an offence!

 

My point about the detailed tree plotting within an Nepia's Area Order is that if the TO had gone to the trouble of plotting all the individuals and groups within the Area - why confirm it as an Area!?!?!?!

 

He's already surveyed it?!?!?!?

[Bundle 2]

" My point about the detailed tree plotting within an Nepia's Area Order is that if the TO had gone to the trouble of plotting all the individuals and groups within the Area - why confirm it as an Area!?!?!?!

 

He's already surveyed it?!?!?!? ..."

 

 

Perhaps he was upgrading the order from area as this is what the legislation indicates as necessary...cant say I understand how that might have failed to have happened .....?

[Bundle 2]

 

When we make large Area Orders we tend to take a billion photos. With statute law and strict liability on our side that is often all we need - if there is a tree in a picture taken on the date of serving and one day its gone the onus is on the landowner to prove he didn't commit an offence!

 

 

I am not so sure you are right about that although I am happy to be wrong....It feels intuitively to be a bit rich....

One of the reasons surely, the comments that appear in the bluebook are there is precisely because of the difficulty there maybe with proving a case due to lack of evidence...Indeed I found several such examples with a quick search...attached below ( for real saddos only I would suggest ! ) Brown v Michael B Cooper Ltd

This is what underpins the guidance, again in the bluebook, that these orders are, in the Secretary of States view, to be reviewed or used as temporary orders.

As it is only best practice guidance, you are of course at liberty as an LA to pick whichever fights you feel you must!

As a temporary order, there would indeed be little point in producing a survey when it is not a prerequisite of a TPO. Photos are I am sure, all that may be necessary.

I have included only one example due to file size limits....try this.

http://www.google.co.uk/search?hl=en&q=Brown+v+Michael+B+Cooper+Ltd&btnG=Google+Search&meta=

and click on the first link....cheers.

pl051013_-_5-2_(i)_-_Tree_Matter_-_228_Ninfield_Rd_Bexhill.doc

[Andy Collins]

The reasoning behnd my query is to ensure that these new trees are adequately protected in law, I've still to dig out the paperwork (due to a long day) so I can review it properly.

[Amelanchier]

I am not so sure you are right about that although I am happy to be wrong....It feels intuitively to be a bit rich....

One of the reasons surely, the comments that appear in the bluebook are there is precisely because of the difficulty there maybe with proving a case due to lack of evidence...Indeed I found several such examples with a quick search...attached below ( for real saddos only I would suggest ! ) Brown v Michael B Cooper Ltd

This is what underpins the guidance, again in the bluebook, that these orders are, in the Secretary of States view, to be reviewed or used as temporary orders.

As it is only best practice guidance, you are of course at liberty as an LA to pick whichever fights you feel you must!

As a temporary order, there would indeed be little point in producing a survey when it is not a prerequisite of a TPO. Photos are I am sure, all that may be necessary.

 

My comments referred to recently served Area Orders.

You're on shaky ground with a 1970 Area Order more or less regardless of evidence!!!

 

Worth noting though none of what you've dug up requires an LPA to review Area Orders - its all just guidance. Which is why we are were we are.